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Bill Montgomery Is No Immigration Moderate

Chris Whetzel

Luz Edith Ruiz Rascon is weary of her life in Maricopa County's Estrella Jail, where detention officers bark at her, the food is inedible, and every day is a day away from her two children, a 9-year-old daughter and an 18-year-old son who is battling leukemia.

"It's taking so long," Rascon laments during a jailhouse interview. "Every day, there are so many indignities; they pile up against you."

Rascon's family needs her, she explains in Spanish. Her daughter cries when she visits or speaks over the phone to Rascon.

Her son is studying computer programming at Gateway Community College. He suffers nausea and vomiting from radiation treatments for his disease.

Her husband, Juan, who works in construction, has had to be the household's sole breadwinner, as well as both father and mother to the children. This, while Rascon has spent six months and counting in Estrella, where she is held "non-bondable," like a murderer, a child molester, or a serial rapist.

Rascon's crime? She made up a Social Security number 11 years ago to get a job packing vitamins at a GNC warehouse in Phoenix.

A Mexican national, she was arrested in one of Sheriff Joe Arpaio's notorious job-site raids last August.

Her crime is victimless. The Social Security number belongs to no one.

Yet she stands accused of six counts of forgery and identity theft. And under Proposition 100, passed by voters in 2006 as part of a package of anti-immigrant laws, she can be refused bail if the "proof is evident or the presumption great" that she committed a "serious felony offense," defined by the Arizona Legislature as a class-four felony or above.

The Maricopa County Attorney's Office could have charged Rascon with a class-six felony or even a misdemeanor, the latter done routinely in cases of forgery committed by underage college students purchasing alcohol.

She then would have been "bondable" or perhaps simply issued a citation and sent home.

But as in hundreds of such cases prosecuted here every year, the County Attorney's Office charges immigrants with class-four or even class-three felonies, forcing on them an unenviable choice: plead guilty to a felony charge that probably will result in deportation when they are turned over to U.S. Immigration and Customs Enforcement or wait for months for trial in Sheriff Joe Arpaio's jails.

This system was designed as a "deterrent" for illegal immigration by now-disbarred County Attorney Andrew Thomas and now-recalled state Senate President Russell Pearce, both immigration hawks.

Thomas' eventual successor, County Attorney Bill Montgomery, wishes to be seen as breaking with the Thomas era, partly by endorsing a watered-down version of comprehensive immigration reform and by reaching out to Hispanic groups, perhaps with an eye toward running for statewide office.

Yet he maintains the same crushing immigration-related policies of his predecessor. Like Thomas before him, he punishes aliens for working here illegally — though states are preempted from doing so by federal law.

So far, state and federal courts have turned a blind eye to this ongoing injustice. And an ACLU challenge to Prop 100's amendment to the Arizona Constitution languishes in the Ninth U.S. Circuit Court of Appeals.

But a handful of defense and immigration attorneys have taken on the otherwise hopeless cases created by Montgomery's devotion to Thomas' policies. Using the recent U.S. Supreme Court ruling on Senate Bill 1070 in Arizona v. United States and other novel legal tactics, they seek to create hope for the damned by carving a pathway that other lawyers can follow.

That is, if their clients can hang on and remain in Arpaio's jails while they pursue what some might regard as a long-shot legal defense.

"My daughter encourages me," Rascon says, wiping at tears with handcuffed hands. "She is strong. She tells me not to sign the guilty plea."


Bill Montgomery shows little sympathy for the plight of Rascon or her family.

"Look, you can go through the jail and come up with a hard-luck story for everybody in there who's being prosecuted," the county attorney explains during an interview with New Times.

He admits that what her family is going through is "tough," but he says he's got a job to do. And part of that job, Montgomery insists, is combating identity theft. He points to the fact that Arizona was ranked fourth in identity-theft cases in 2011 and cites statistics showing that 25 percent of the complaints in such cases are employment-related.

But in Rascon's case, there is no complaint from a victim because there is no victim. She used her own name with a Social Security number that has no match in the Social Security database.

The number belongs to no one.

"We don't know that," Montgomery scoffs. "That Social Security number still can be issued."

Meaning that Montgomery is prosecuting Rascon based upon future possible victims, a legal theory that calls to mind the dystopian Steven Spielberg film Minority Report, with its "PreCrime" cops apprehending perpetrators years in advance of their transgressions.

 

He denies that Rascon and the hundreds like her processed each year by his office are charged differently because they are illegal or that any thought is given to the immigration consequences of a felony record.

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."

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.

The Tempe Police Department even has an operations order instructing cops to confiscate underage drinkers' IDs and cite them with one of several misdemeanors before releasing them, if they meet certain criteria.

Such misdemeanors are processed by city courts and county justice courts, but Tempe PD spokesman Michael Pooley explains that an officer could charge an underage college student with a felony forgery charge, which then would be handled by the County Attorney's Office and adjudicated in Superior Court.

"A lot of these kids, we don't want to jam 'em up with a felony," Pooley says of the practice.

Montgomery admits that such cases could be prosecuted as class-four felonies, just as is an undocumented alien using a false ID or Social Security number for work.

So why doesn't he do this?

"That's got to be submitted [to the County Attorney's Office by law enforcement]," he says. "I don't do the investigation . . . I can't tell [the police] whom to arrest."

But, hypothetically, could Montgomery ask a city attorney to send such misdemeanors to the MCAO for possible prosecution as felonies?

"I can't do that," Montgomery demurs. "It's not an appropriate role for a prosecutor. You say I've got all of that power? I decline to use it improperly."

Veteran criminal defense attorney Antonio Bustamante, who handles Prop 100 cases, has a blunt reply for Montgomery's assertion.

"For him to say he has no control over it is nonsense," Bustamante says. "He and his top people control all of that."

In fact, deputy county attorneys represent the state in county justice courts. And Montgomery's attorneys have ready access to a county grand jury, which could charge underage drinkers using fake driver's licenses with felonies — if Montgomery wanted it that way.

Cobb claimed that though this "technically" may be correct, most cases of underage imbibers are handled by city courts, not justice courts. And, anyway, the likelihood of convicting such a defendant on felony forgery instead of a misdemeanor "is extremely low to non-existent."


Despite Montgomery's rationalizations, the way his office prosecutes Prop 100 cases conflicts with his embrace of the so-called SANE immigration program, developed over the past two years by local advocacy groups such as the Real Arizona Coalition.

The SANE proposal calls for securing the border, "accounting" for the undocumented in the United States, achieving "necessary bureaucratic reform," and engaging "all levels of government."

Conservative by the standards of pro-immigration advocates, the plan proposes that "those without lawful authority" be allowed to "come forward and gain legal status," though the initiative lacks consensus on how those who qualify for that status might become citizens.

All the same, Montgomery's support for the program, inaccurately referred to as "the Montgomery plan" by some, is an attempted shift on the issue by a politician who campaigned for office in 2010 as a pro-SB 1070 nativist.

Montgomery ran in the GOP primary against then-acting County Attorney Rick Romley, appointed by the Board of Supervisors to replace immigration hardliner Andrew Thomas after Thomas left to pursue the Republican nomination for Arizona Attorney General, a bid he lost to current Attorney General Tom Horne.

Romley had bucked the Arizona GOP's immigration stance, publicly advising Governor Jan Brewer to veto SB 1070 and suspending Thomas' controversial practice of prosecuting migrants — not just the coyotes who transport them into the United States — under Arizona's human-smuggling statute.

Montgomery promised to reverse Romley's move, stumping at nativist rallies in Phoenix and, infamously, at the border on the ranch of anti-Semite Glenn Spencer, leader of the hate group American Border Patrol.

There, along with staunch anti-immigrationists Pearce, Arpaio, and then-U.S. Senate candidate J.D. Hayworth, Montgomery led the crowd in a fist-pumping chant of "U.S.A., U.S.A.!"

Asked whether he knew at the time that Spencer had once played host to militia-woman Shawna Forde, arrested by the FBI outside Spencer's ranch for the 2009 home-invasion murders of 9-year-old Brisenia Flores and her father, Raul, Montgomery claims that he did not.

"I have not been back since," Montgomery offers, with a chagrined look on his face.

 

His pandering to the far right worked. With the help of Arpaio, who endorsed Montgomery and dumped more than $500,000 into TV ads and mailers painting Romley as pro-amnesty, Montgomery triumphed, besting Romley in the primary by 12 percentage points.

He later coasted through the general election, as Democrats did not bother to field a candidate that year.

A shrewd operator, Montgomery is personable and open to the media, regularly holding bi-monthly press conferences, where reporters can ask him anything they want.

But the West Point graduate and Gulf War veteran has a talent for channeling Machiavelli — and for adopting stances that are politically expedient.

Before Thomas left office in 2010, then-Deputy County Attorney Montgomery had a surreptitiously recorded conversation with former Supervisor Don Stapley in which he called Thomas' pal, Arpaio, borderline senile.

Ironically, in the same conversation, Montgomery expressed concern that Thomas was alienating Hispanics from the Republican Party with his anti-immigrant rhetoric.

Once elected, Montgomery began to pivot slightly, perhaps knowing that to win in a future statewide general election, he might have to moderate his public anti-immigrant tone so popular with the Republican base in Maricopa County.

In 2011, he began appearing at forums sponsored by the Arizona Employers for Immigration Reform, from which the SANE initiative eventually would spring.

At one such public forum in May at the Competitive Enterprise Institute in Washington, D.C., Montgomery walked a fine line.

While defending Russell Pearce as "neither a bigot nor a racist" and insisting that Arizona had suffered an immigration-related onslaught that included "beheadings," he dismissed mass deportations of the undocumented as impractical and inhumane and suggested a "three-year hiatus against enforcement" of immigration laws as the undocumented come forward to register under the SANE plan.

Montgomery spoke of growing up "just south of South Central Los Angeles in a predominately Hispanic neighborhood" and avowed that his Roman Catholic faith is "heavily influenced" by Hispanic culture.

Nevertheless, he continues the systematic policy of persecution authored by Thomas and Pearce, one that adheres to the slogan "attrition through enforcement" — the stated intent of SB 1070, Arizona's "papers, please" law.

Though Prop 100 preceded SB 1070 by four years, it was one of several laws and ballot initiatives designed to drive undocumented Hispanics from the state.

It mainly was pushed by Pearce and his fellow nativists, who were openly antagonistic toward the undocumented.

A March 2008 Arizona Republic article on Prop 100 and its effects paraphrased Thomas' calling the constitutional amendment a "de facto deportation tool" in which undocumented defendants are hit with felonies, held without bond, and effectively coerced into pleading guilty.

When Thomas was deposed in 2010 for the ACLU's legal challenge to Prop 100, he doubled down on that statement, crowing that his office lobbied for Prop 100 and that it was part of his "program" to address illegal immigration.

By charging illegal immigrants with felonies, "a deterrent message goes forward to other would-be illegal immigrants," Thomas said under oath, "that they should not violate the law and come into Arizona illegally."

Additionally, Thomas offered his reason for "obtaining a felony conviction" against an undocumented person before turning over him or her to ICE:

"It will make it harder for that convicted person to immigrate legally to the United States or become a U.S. citizen."

Unlike Montgomery, who depicts the pursuit of felonies against the undocumented as something he has no power to change, Thomas specifically referred to his "policy direction to seek a felony conviction for those cases."

Thomas called this "my own no-amnesty policy," because it makes it more difficult "for those people prosecuted and convicted in that way to receive amnesty and become citizens if they have a felony conviction."

Thomas and his allies in the Arizona Legislature knew exactly what they were doing. The proposition was sold to the public as a way, in the words of Russell Pearce, to keep "dangerous thugs" incarcerated.

"By voting yes for this initiative," Pearce wrote in a statement that appeared in the Arizona Secretary of State's 2006 voter's guide, "we keep violent criminals in jail."

Undocumented aliens were to be charged with "serious felony offenses as prescribed by the [L]egislature," in the words of the constitutional amendment. It was not made clear that these "serious" offenses would include such non-violent transgressions as making up a Social Security number or using a fake ID to obtain employment.

Lack of valid documentation is the very definition of "undocumented." Those residing in Arizona without authorization cannot obtain driver's licenses, and Mexican Consulate-issued matricular cards and Mexican driver's licenses are viewed with suspicion by law enforcement.

Additionally, under the portion of 1070 upheld by the U.S. Supreme Court, "reasonable suspicion" on the part of a law enforcement officer is enough for detention and an immigration inquiry.

 

The combination of SB 1070, Prop 100, routine stops by law enforcement, and Arpaio's notorious immigration roundups and raids created a situation in which every undocumented resident of this state is a potential felon waiting to be convicted, separated from his or her family, and sent packing.

Prop 100's legislative history, the statements of Thomas and Pearce, and the U.S. Department of Justice's 2011 findings that Arpaio's raids and sweeps specifically target Latinos — in violation of the 14th Amendment's guarantee of equal protection under the law — all belie Montgomery's rationales for a cruel, bigoted policy.


The Eighth Amendment to the U.S. Constitution explicitly forbids "excessive bail," and Arizona courts have held that bail cannot be used as a means of inflicting punishment, given the presumption of innocence that all defendants should have.

So it would seem that either the courts or the Sheriff's Office or the county prosecutor would know how many people sit non-bondable in Maricopa County Jails under the dictates of Prop 100.

Yet all three entities claim ignorance of this information after repeated inquiries and public-records requests from New Times.

In reality, the MCSO has access to this information through its computerized Jail Management System, as do the county prosecutor and the courts.

And when faced with a subpoena and a deposition under oath during the ACLU's Prop 100 lawsuit, MCSO employees were able to cough up some stats.

In his 2010 deposition, MCSO Sergeant Jonathan Knapp testified that in a five-month period from August to the end of December 2009, 2,070 inmates were booked and held non-bondable under Prop 100, 402 of whom had been arrested by the MCSO.

He also testified that there were 20 to 30 so-called "Simpson hearings" — wherein non-bondable defendants can appeal to have bail granted — during that same period,

However, the standard of proof is so high that Simpson hearings rarely are won. Knapp said that in all of the 20 to 30 Simpson hearings, defendants lost.

Knapp also said that some defendants don't know their immigration statuses when questioned in an interrogation carried out by MCSO deputies before being read their Miranda rights.

And he acknowledged that people with legal status have been held non-bondable by the county.

In one case, he testified, a U.S. citizen was held non-bondable for 45 days before the defendant's lawyer was able to produce a birth certificate issued in the United States.

It is the judge at the initial appearance, or "IA court," who decides whether an arrestee can be held without bail.

Prosecutors and deputies show up at the initial appearance and present the judge with information alleging that there is probable cause to believe someone is illegal — and that the "proof is evident or the presumption great" that the person has committed at least a class-four felony.

Most accused in Prop 100 cases are indigent, but they are not allowed a public defender at the IA court, and they are not informed at the IA court that they have a right to a Simpson hearing to challenge their non-bondable status.

These defendants eventually are assigned public defenders paid for by the county, but one such lawyer deposed for the ACLU lawsuit stated that it sometimes takes four weeks before a public defender meets with his or her client.

And so, from the IA court on, the county subjects these defendants to grinding pressure to plead guilty and thereby escape Arpaio's jails — as their sentences may amount to no more than probation or time served.

But that guilty plea, once the defendants are turned over to ICE, makes them removable and barred from ever benefiting from whatever immigration reform Congress may pass this year.

The argument that the undocumented are more likely to be a flight risk is contradicted by the simple fact that most funneled through this system do not want to be deported.

Often, they have extensive ties to the community and own homes and, like Luz Ruiz Rascon, have American-citizen children and have lived and worked in Arizona for a long time.

Their entire lives are here. Take, for example, Octavio Castaneda Flores, who was arrested in October by an investigator for the Arizona Department of Transportation and still sits non-bondable in the Durango Jail under charges of forgery and taking the ID of another.

Ironically, the identity Flores allegedly stole belongs to Luis Franco, a convicted felon with multiple prior offenses currently serving a two-year sentence in the Arizona Department of Corrections for a dangerous-drug violation.

Flores purportedly used the identity to work at an Ashley Furniture store in Phoenix for eight years. He has lived in Arizona since he came here with his parents when he was 15.

The 27-year-old has every reason to fight to remain in the country. He has a wife and three U.S.-citizen children, with another on the way.

 

He graduated from high school in the Valley, and his brothers, his parents, and his entire extended family are here.

Flores is an applicant for President Obama's Deferred Action for Childhood Arrivals program, which could accept him — if he is found not guilty of a felony. A conviction not only would scotch his chances for DACA but would make him deportable.

The young father has proved, on more than one occasion, that he is not a flight risk. As was originally reported by New Times ("Bill Montgomery's Ghost of Christmas Present: Injustice," December 24), when Flores' arresting officer, ADOT Detective Chris Oberly, didn't show for his Simpson hearing the week before Christmas, a judge granted Flores a low bond of $3,600.

Flores' lawyer of record, Dori Zavala, and Zavala's fellow immigration attorney, Delia Salvatierra, chair of the Immigration Section of the State Bar of Arizona, persuaded ICE to lift its hold on Flores, thus allowing him to bond out and be with his wife and kids for the holiday.

The judge continued the hearing until January 7, and Flores dutifully appeared, just as he did for an appearance in immigration court during the interim.

ADOT's Oberly once more was a no-show, but ADOT sent a stand-in, and the Simpson hearing went forward.

Zavala argued that her client had no "intent to defraud" and had not created a fake ID to work.

She also raised serious constitutional issues, specifically that the state was barred, under federal law, from using as evidence Flores' I-9, a federal form certifying eligibility to work lawfully in the United States, as well as any associated documents in his personnel file with Ashley Furniture.

And she observed that the U.S. Supreme Court's recent SB 1070 decision in Arizona v. U.S. had upheld the lower court's injunction against section 5(c) of the law, which made it a crime to seek or hold employment in Arizona without valid documents.

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).

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.

And by Arizona standards, at least, his SANE immigration stance is more moderate than the views of the red-state Mexican-bashers he courted to get elected. He even has taken some flak from right-wingers for his new-found "sanity" on immigration reform.

But his actions do not yet comport with his feint to the political center.

A religious man, Montgomery was asked what he would tell Jesus Christ in the afterlife, should his lord and savior ask him why his office treated an otherwise law-abiding mom like Rascon so callously.

After a pause, he responds, "That I did what I had to do. That I rendered unto Caesar what is Caesar's and to God what is God's."

So he is washing his hands, like Pontius Pilate?

"Oh, no, and to compare the two is outrageous!" he says, later adding, "Jesus didn't take anyone's identity."


Delia Salvatierra and her fellow lawyers have set up a fund to support the legal fight against the MCAO's anti-immigrant policies at www.sisepuedearizona.com.


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