If you need an illustration of Arizona's diseased "attrition through enforcement" mentality, look no further than the case of Solaguahire Zenil, a local DREAMer, who is currently in the custody of U.S. Immigration and Customs Enforcement.
According to her immigration attorney Jose Penalosa, Zenil, 23, pleaded guilty this Monday to one misdemeanor count of possession of a forgery device. This, after spending six months in jail, nonbondable, because she was accused of felony forgery charges and presumed to be undocumented.
Normally, ICE would release someone like Zenil after taking custody of her. She's a DREAMer, who has been in the United States since she was five, and she's DACA-eligible, meaning she would benefit from President Obama's Deferred Action for Childhood Arrivals.
Most importantly, her conviction is for a misdemeanor, not a felony.
Why she has not been released yet has so troubled her fellow DREAMers that they demonstrated today outside Phoenix's ICE office, demanding her freedom. She may have been taken to ICE's Eloy Detention Center, but so far, Penalosa has not been able to make contact with his client.
"If they take her to Eloy, then I'll have access to her," he told me, as protesters chanted, "Free Sol Now," nearby. "Once I have her case number, I can file a petition for a bond hearing."
But the fact Zenil remains in ICE custody is only the tip of a very unusual iceberg, if you'll excuse the pun. It is unheard of for the Maricopa County Attorney's Office under Bill Montgomery to offer an undocumented person a misdemeanor plea after that individual has been charged with class four forgery, essentially for working without proper paperwork.
So why did the MCAO make this offer on the same day that Zenil's trial was to begin?
Penalosa says the county attorney offered this unprecedented bargain because it discovered that the Social Security Number Zenil was using to work at a clothing store was valid and belonged to her.
"At the end of the day, it came out that this was her own Social Security Number that she obtained in 1995," Penalosa claimed. "That's why they went to the misdemeanor and dropped the two felony charges."
Penalosa said that before 1996, anybody could apply for a Social Security Number and get one, legally. He said Zenil's public defender told him that this is why the prosecutor cut them such an unusual deal: Not because the prosecutor suddenly developed a conscience, but because the prosecutor had no case.
So why not drop all charges against Zenil?
"She could have [gone to trial] and been vindicated," Penalosa said. "But the county wanted something to hold onto, to say, `Hey, we did this till the end, and therefore her detention was lawful.' That's going to be their argument."
But if the Social Security Number is legit, how can Zenil be guilty of possession of a forgery device?
"That forgery device was a pen," Penalosa said. "That's what the public defender told me [the prosecutor said] -- with which she filled out a form."
And what punishment did Zenil receive?
"One day probation," Penalosa stated.
(Note: The MCAO did not immediately respond to a request for comment.)
It gets even stranger, and more infuriating. In the last minute entry in the case, dated April 17, Judge Dawn Bergin goes over the details of how Zenil ended up in Sheriff Joe Arpaio's gulags for six months.
Almost exactly one year ago, Arizona Department of Public Safety Officer Seth Turken stopped Zenil for turning right on red, where a "no right on red" sign was posted.
Zenil produced the car's registration, but only had her Mexican consulate-issued Matricular card as identification.
Turken questioned Zenil and her passengers. He learned that Zenil worked at the retail clothing store Aeropostale in a local mall. Turken issued Zenil a citation for the illegal right on red and for driving on a suspended license. He asked her for her Social Security Number, and she declined to respond.
"At some point during the encounter," writes Bergin,"[Turken] asked her how she could be working if she had no Social Security Number. Neither Officer Turken nor the defendant could recall her response."
Turken then took two photos of Zenil, "both for identification purposes and for an investigation he planned to conduct regarding the possibility that the defendant had used fraudulent documents to obtain employment."
Earlier, in order to put the other passengers of the car at ease, Turken told them that, "he was not an immigration officer and was just trying to find out what was going on."
But it seems Turken was intending to play immigration cop all along. Later, he and another DPS officer went to Zenil's place of employment to grill her. Ultimately, Turken submitted the case to the MCAO. Zenil was indicted, arrested and went on to spend a half-year in stir.
On reading Bergin's minute entry, it strikes me that DPS officers apparently have a lot of free time on their hands.
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I mean, this guy went out of his way to put in jail a 23 year-old girl working retail sales to support her sick mom in Mexico. Doesn't he have some real criminals to chase, some drug dealers or something?
Fortunately, Zenil had a great advocate for her cause in pro-immigrant activist Carmen Cornejo, who has been following her case for some time. And she had some kick-ass legal representation in public defenders Amy Michelle Kalman and Christopher Manberg, who fought the prosecution at every step.
Penalosa also indicated that Zenil may have a civil claim against the county, but that is yet to be determined. First, he has to spring her from ICE custody, which I hope he can do soon. This young woman has suffered enough.
UPDATE 4/25/13 5:10PM: Zenil was taken to Eloy, according to Penalosa, and ICE still has her. But the good news is, Penalosa has been informed by ICE today that the agency will be returning Zenil to Phoenix, where they will release her. Penalosa says he was told ICE had to vet her before letting her go. Zenil could be back home tonight or tomorrow sometime, according to her attorney.