By Jude Joffe-Block
Fronteras News Desk
PHOENIX — As Congress prepares to take on immigration reform as early as this month, daily reminders remain of a broken system.
In Arizona’s most populous county, a battle is unfolding in the courts over unauthorized immigrants who get hired for work by using fraudulent Social Security Numbers and documents. Law enforcement has been cracking down, but now some defense attorneys are questioning their authority to do so.
One such case involves 27-year-old immigrant Octavio Castañeda-Flores, who was brought to this country illegally as a child.
The Maricopa County Attorney’s Office alleges he was working for the past seven years at a furniture store under someone else’s name and Social Security Number.
Castañeda-Flores was arrested and jailed in September.
“He was just working, he wasn’t doing anything bad,” said his wife Brenda Santana, outside of one of his court hearings in December. “He was doing something every other person is doing every day of their life to support their children and family.”
He is facing multiple counts of forgery and identity theft, which are Class 4 felonies. The charges are based on the documents he presented and filled out when he was hired in 2005, including federal I-9 and W-4 forms, and a state form from the Arizona Department of Revenue.
Maricopa County Attorney Bill Montgomery said employment-related identity theft cases became a law enforcement priority because of particular criminal trends in Arizona.
He said Maricopa County is a destination for immigrants smuggled across the border, and Arizona has a high ranking in identity theft per capita, according to the Federal Trade Commission.
“For over a decade we were number one in the nation for identity theft offenses, and when you looked at what constituted the specific areas of identity theft, employment-related identity theft led the way,” Montgomery said.
He said these offenses, which typically involve working under a fraudulent Social Security Number, aren’t victimless crimes since they can impact someone else’s Social Security benefits.
In 2008, Arizona’s legislature amended the state identity theft statute to include among the prohibited reasons for using another identity “the intent of obtaining or continuing employment,” which made it easier to prosecute these cases.
The Maricopa County Sheriff’s Office has a designated Criminal Employment Squad that arrested more than 100 immigrants at work site raids last year, and nearly 700 since 2008.
Some of those arrested are immigrants who provided their employers with fictitious Social Security Numbers that aren’t assigned to anyone. That’s the case of 38-year old Luz Ruiz-Rascon, who has been jailed since August awaiting her trial after sheriff’s deputies raided the General Nutrition Corporation warehouse where she worked.
Working with a made up Social Security Number is still a crime according to Montgomery, because the Social Security Administration could assign that number to someone eventually.
“We took a look at those cases and charged them for what they were,” Montgomery said of employment-related identity theft. “We didn’t see it in a vacuum of just someone wanting to work here and doing whatever it took to do that. No, there is criminal conduct involved.”
In the time that Maricopa County Attorney’s Office has ramped up these identity theft and forgery prosecutions, federal enforcement targeting unauthorized workers has waned under the Obama administration, which has focused instead on the employers who hire them.
“There are an estimated 11 million people who are here illegally, and they would not be here if they were not working without lawful status,” said Delia Salvatierra, an immigration and defense attorney who represents Ruiz-Rascon. “The federal government knows that, that is why we need comprehensive immigration reform. However, nowhere in the country is unlawful employment being penalized as it is in Maricopa County.”
Salvatierra said these criminal charges wind up having secondary consequences for undocumented defendants.