Jailed Mother's Immigration Fight Exposes Dubious Arizona Felony Charges

PHOENIX, Ariz. -- Luz Ruiz Rascón is a determined woman, the kind who can hold back her tears while she talks about one of the most difficult choices she’s had to make: to stay in jail and fight for her innocence.

Her son’s leukemia diagnosis was one of the biggest challenges for her entire family, up until she was arrested eight months ago at her workplace and incarcerated.

The Maricopa County Attorney’s Office accused her of several counts of identity theft and forgery for allegedly working with false documents. But Rascón, an undocumented immigrant, claims she’s never provided false paperwork. 

Her case exposes the situation of hundreds of undocumented workers in Arizona who could face charges that would deny them a path to citizenship under immigration reform. 

Proposed Reforms and the ‘Gang of Eight’

Proposed reforms would force the deportation of those with a record showing a felony or three misdemeanors. Immigrant advocates believe authorities are inflating minor charges for otherwise law-abiding immigrants to unfairly drive them out of the United States.

In Washington, D.C., a bipartisan group of senators called the “Gang of Eight” introduced an immigration reform package that has renewed hope for many but according to immigration experts will leave people like Luz outside. Conservative members of the bipartisan group are now calling for even tougher restrictions in the wake of last week’s Boston bombing.

The proposed “Border Security, Economic Opportunity, and Immigration Modernization Act” would grant a work permit to undocumented immigrants provided that they don’t have a criminal record.

In most of these cases, undocumented immigrants such as Rascón, age 38, take a guilty plea for the felony identity theft charge so they can be released from jail. Many don’t know the dire consequences that decision will have for them.

But not Rascón. She decided to take her case all the way to trial, if necessary, and has already spent eight months in jail. Her trial is set to begin on May 3. By a state law, known as Proposition 100, undocumented immigrants with serious charges--in her case six felony counts--don’t have a right to bail.

“I had my moments of frustration, desperation,” said Rascón in an interview in Spanish at Estrella jail, the Maricopa County facility that houses women. 

Prosecutors have offered her a guilty plea to a lower-level felony, but this is considered under immigration law a crime of “moral turpitude,” which would make her deportable.

Delia Salvatierra took on Rascón’s case almost eight months ago, and decided to defend her pro bono. She had a stake in her fight too. 

In recent years she started getting more and more cases where immigrants had a specific type of identity theft felony charge on their record that would make them deportable in the eyes of an immigration judge.

When she met Rascón she advised her that taking the plea could not only mean her automatic deportation but also hurt her changes to be eligible for immigration reform.

Staying in jail since her arrest last Aug. 9 hasn’t been easy for Rascón. She and four co-workers were caught in an immigration raid of her employer by the Maricopa County Sheriff’s Office, under Sheriff Joe Arpaio. In jail, she found, there is no privacy, and there are frequent lock ups that require her to spend the entire day in her bed. 

Maricopa County Jails have been scrutinized by the federal government resulting from a recent lawsuit filed by the Department of Justice (DOJ). The suit contends that some Latino inmates are discriminated against due to their inability to speak English.

DOJ also alleges that in some instances the Sheriff’s immigration raids have discriminated against Latino workers.

This is one reason Salvatierra believes the federal government could provide an exception to these Arizona workers if immigration reform passes.

‘My Children Are Above Everything’

Rascón has had her moments of doubt. “I say, ‘I’ll leave if they don’t want me in this country, nevermind,’” she admitted. “But at the same time, I say, ‘No, no, no.’ I can’t throw away 20 years of my life here. 

She took a job at the GNC vitamin supply company 11 years ago, eventually being put in charge of packaging the product for shipping. She starting her shift at 5 a.m., and usually worked eight to 10 hours at the $14-an-hour job. “It was a heavy job, but I liked it,” she said. 

Mainly, she said, “My children are above anything. They are the ones that move me to wait and keep fighting.”

Her children, Irving and Litzzy--both U.S. citizens--visit their mother in jail as much as twice a week.

Irving, 18, drives his younger sister to school every morning, after his dad is long gone to work as a day laborer. Irving goes to a community college in the evening to study computer science. 

“I know I’m my mother’s son,” he said, alluding to her care when he was diagnosed with leukemia. He’s proud of her choice to fight the charges in jail. 

Rascón is concerned about making sure that Irving takes care of his health. 

“Sometimes I don’t want them to come and see me,” she said in Spanish. “It is sad to see them and watch them walk away, and then wait for another visit.” 

County Attorney Won’t Change Plea Offers

Since 2008, Arpaio’s office has conducted worksite raids under a state civil law aimed at cracking down on unlawful employers. But the Sheriff focused on arresting workers on felony charges of identity theft.

Maricopa County Attorney Bill Montgomery asserts this charge is not immigration related but responds to an effort to fight the high volume of identity-theft crimes committed in the state.

Rascón’s attorney, Salvatierra, counters, “I don’t believe they’ve committed the kind of offense that requires nine or 10 months in pretrial incarceration.”

Montgomery said his agency won’t modify the type of pleas he offers to people arrested in the raids. “We’re going to handle these cases the way we handle every other case, and I’m not going to pick out one group of people for special treatment. I’m not supposed to do that. That’s actually unconstitutional,” he stated in an interview.

The county attorney has come under fire by several pro-immigrant groups for claiming to support comprehensive immigration reform while continuing to prosecute undocumented workers on charges of identity theft.

“I feel he’s really after our folks and to me it's not really a criminal act--although the state has made it that,” said Rosie Lopez, founder of the Hispanic Community Forum. “These people are hard working people, they’re honest. They’ve never done anything wrong, and this is simply because they wanted to feed their families.”

Montgomery joined the Real Arizona Coalition, a bipartisan group including businesses, religious leaders and others to craft a platform for immigration reform that was released last December. 

The platform, called the Solution to Federal Immigration Reform (SANE), recommends that undocumented immigrants have a path to citizenship provided that they don’t have a criminal record “other than individual identity violations.”

During a public panel at Arizona State University (ASU) last week, civil rights attorney Daniel Ortega recognized people with this type of charge won’t be able to be part of immigration reform unless groups lobby on their behalf.

Montgomery, who was on the panel, said he has “already provided all the support that I can” by contributing ideas for the SANE platform as far as who should qualify.

He said that his stance on the platform was that you “may necessarily have to look at exempting employment-related offenses to encourage enough people to come forward and make it worthwhile.”

Salvatierra, Rascón’s attorney, said she was encouraged that there was more dialogue with the county attorney’s office and that he came out in support of comprehensive immigration reform.

She noted that prosecutors have a choice. For instance, they could offer a plea of solicitation of taking the identity of another, or solicitation to commit forgery. 

“The Supreme Court is saying that you can take [immigration consequences] into consideration,” she said, when it comes to offering a plea.

She cited a 2010, U.S. Supreme Court decision, Padilla v. Kentucky, which determined that immigrants facing criminal charges have a right to be told of the immigration consequences if they decide to accept a plea.

The decision also says, “… informed consideration of possible deportation can only benefit both the State and noncitizen defendants during the plea-bargaining process. By bringing deportation consequences into this process, the defense and prosecution may well be able to reach agreements that better satisfy the interests of both parties.” 

A Narrow Chance 

Nationally groups like the National Immigration Law Center (NILC) have the joined CAMBIOcampaign – to lobby for comprehensive immigration reform that would include, among many issues, due process for undocumented immigrants.

They advocate for immigration judges to be allowed to take into consideration different factors before deporting someone who has a crime on his or her record.

But the current proposal from the congressional “Gang of Eight” offers little flexibility when it comes to being inclusive of people who might not have spent a day in jail, said Kamal Essaheb, an immigration attorney at NILC.

“DREAMers” (undocumented youth brought to the U.S. in childhood) would have a faster path to a green card under the current proposal. But they also would be subject to the same type of criminal barriers, Essaheb added.

“We’re going to fight to make sure as many people as possible are included,” he said.

Essaheb said it was true that the eight senators included provisions to exclude barring people with a crime on their record in connection with state immigration laws, such as Arizona’s SB 1070.

But he said it is likely that wouldn’t extend to other enforcement, such as the case of people charged with identity theft.

Essaheb said that the lack of federal immigration reform has led to a proliferation of state laws that would exclude people depending on where they live. 

“We don’t want Sheriff Arpaio deciding who should get legalized or who shouldn’t,” he said. “We want to make legalization accessible regardless of where you are or whether you live in a state that heavily criminalizes undocumented immigrants because of discriminatory policies.”

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