Some Arizona Immigrants May Not Be Eligible For Immigration Reform
PHOENIX -- Late last month, 14 unauthorized immigrant defendants appeared in a crowded courtroom in Maricopa County Superior Court. They were shackled and wearing black and white stripes.
They were there to change their pleas to guilty.
Their crime was using fraudulent Social Security Numbers to work at Sportex, a Tempe company that makes custom sports apparel.
They were arrested in February, when Maricopa County Sheriff’s deputies raided their workplace. They were each charged with multiple felonies for identity theft and forgery.
“Guilty or not guilty?” the judge asked, after reading them the terms of the plea agreement.
“Guilty,” said six of the defendants together, in Spanish. They were pleading together in a group, to speed up the process.
The plea deal lowered the charges to one count of criminal impersonation, a Class 6 felony.
Taking the plea meant the defendants would get out of jail, as the judge then sentenced them to time served and six months probation.
But that felony conviction could have severe consequences, said Capital University Law School professor Cesar Garcia Hernandez, who specializes in criminal and immigration law.
The crime counts as a “crime involving moral turpitude” by federal standards, which renders immigrants ineligible for immigration benefits.
“It means this individual is almost certain to be deported from the United States,” said Garcia Hernandez. “And that person is almost certain to be ineligible for the provisional immigrant status that Congress is contemplating.”
Under the current Senate bill for comprehensive immigration reform, most felony convictions would render unauthorized immigrants unable to qualify for a legalized status. The proposal creates a "registered provisional immigrant" status that would allow immigrants who are currently in the country illegally to gain the right to work legally, and ultimately obtain citizenship.
In the past five years, the Maricopa County Sheriff’s Office says it has arrested more than 500 unauthorized immigrants at worksite raids on felony identity theft charges.
In previous interviews with Fronteras Desk, Maricopa County Attorney Bill Montgomery has said prosecuting employment-related identity theft is a priority because Arizona has one of the highest rates of identity theft in the country.
Those efforts are applauded by advocates for restricting immigration.
“Very few places, I mean, none that I can think of go after these serious crimes the way Arizona does, Maricopa County in particular,” said Mark Krikorian of the Washington-based Center for Immigration Studies.
He said in most jurisdictions, these cases are only prosecuted if there is some other criminal activity involved. But he said a more proactive approach is necessary.
“We must not be allowing illegal immigrants to steal people's identities without any consequences,” Krikorian said. “It subverts the smooth functioning of a modern society.”
But it’s estimated that across the country several million immigrants who lack legal status routinely resort to working with fraudulent Social Security Numbers, as it’s the only way to get hired on the books.
Garcia Hernandez said it’s ironic that Maricopa County continues to crack down on these workers when Congress is debating a solution that would allow this population to work legally, under their own names.
“These people who are pleading guilty to these crimes are contributing to the United States in exactly the way that Congress wants them to,” Garcia Hernandez said.
He pointed to a provision of the proposed immigration reform bill in the Senate that requires immigrants — after they gain legalized status under the reform — to prove that they have been working continuously.
“These people have been doing exactly that. The only problem is that right now it is a crime to do what they are doing, and these individuals have the bad luck of getting caught and being prosecuted,” Garcia Hernandez said.
One of the former Sportex workers who took the plea was 62-year-old Maria Gutierrez. Outside of the courtroom, her daughter Mirian Lopez lamented that her mother wont be eligible for an immigration reform if that day comes.
Lopez said her mother didn’t want to fight the charges against her, because she wanted to get out of jail as soon as possible. In Arizona, unauthorized immigrants accused of certain felonies can’t be released on bond before their trials.
“So much injustice, so much humiliation, she couldn’t take it anymore,” Lopez said of her mother’s past three months in jail.
Meanwhile, some local defense attorneys are challenging the Maricopa County Attorney’s authority to bring these criminal charges. They claim the evidence includes federal tax returns and employment forms that can only be used in a federal — not state — prosecutions.
Their briefs rely on the U.S. Supreme Court’s ruling in the U.S. Department of Justice’s challenge to Arizona’s immigration law, SB 1070. Language in that opinion suggests the high court interprets federal immigration law to mean that it is the federal government’s job alone to enforce employment eligibility.
County prosecutors counter that prosecuting forgery and identity theft is not pre-empted by federal law.
For defendants who want to contest the charges against them, it involves patience.
Luz Ruiz Rascon, 38, has been in jail nine months awaiting her trial, since she was denied bond. Her trial is scheduled for mid-May.
Ruiz Rascon immigrated illegally from Mexico 20 years ago, and began working at a General Nutrition Center warehouse packing boxes of vitamins 11 years ago.
She was arrested by sheriff’s deputies in August along with five other co-workers.
According to court briefings filed by the Maricopa County Attorney’s Office, law enforcement received a tip that warehouse employees were working with Social Security Numbers that did not belong to them.
The sheriff’s detectives obtained wage and earnings information about the employees from the Department of Economic Security, and found discrepancies when they cross-checked employee Social Security Numbers, according to the court briefs.
In an interview from the Estrella Jail, Ruiz Rascon said she never realized she could get in trouble for identity theft.
“I always worked with my name and birthday,” she said in Spanish, adding that she also used a valid state of Arizona ID card to get the job.
So far, prosecutors haven’t shown the Social Security Number she is accused of using belonged to a victim.
Her lawyers argue the evidence the prosecutors are using against her — tax and employment forms that list a fraudulent Social Security Number — can only be used in a federal prosecution, and claim some of the evidence is tainted because it was illegally obtained.
Away from her family, Ruiz Rascon worries about her teenage son who is fighting leukemia. But he also encourages her.
“He tells me, ‘Mom, you can do this’,” she said.
She’s motivated by the hope that if she can beat the charges, she may one day qualify for legal residency.
Meanwhile, a growing number of Arizona attorneys are calling for federal immigration reform proposals that do not exclude immigrants who have felony convictions due to employment-related offenses.
“There are 11 million [unauthorized immigrants] who may not be using their own Social Security Numbers but who have not been caught,” said Danny Ortega, a Phoenix attorney and the past chair of the National Council de la Raza.
“But for the people who have been caught, we need to lobby for an exemption on that basis," he said.