Longform

Bill Montgomery Is No Immigration Moderate

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.

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Stephen is a former staff writer and columnist at Phoenix New Times.
Contact: Stephen Lemons