Supreme Court: ICE can no longer use identity-theft charges

After the Postville, IA raid on May 12, 2008, Immigration and Law Enforcement pressed criminal charges against 300 illegal workers for identity theft, asserting that these workers had criminally stolen the identity of the social security card holders whose numbers they used. The defendants were railroaded through a court. One of the workers, now in federal prison, appealed. The Supreme Court yesterday in a unanimous decision threw out the conviction and in doing so forbad ICE from using this overkill tactic. The court’s reasoning: the workers had not idea the numbers were for actual people.
According to the NY Times, “The Obama administration has said that it will shift the focus of immigration enforcement to employers who intentionally hire unauthorized immigrants in order to pay lower wages or otherwise lower costs. But last week the administration said agents would continue to detain illegal immigrants found in raids.”
The article in full:
Published: May 4, 2009
WASHINGTON — The Supreme Court on Monday rejected a favorite tool of prosecutors in immigration cases, ruling unanimously that a federal identity-theft law may not be used against many illegal workers who used false Social Security numbers to get jobs.
The question in the case was whether workers who use fake identification numbers to commit some other crimes must know they belong to a real person to be subject to a two-year sentence extension for “aggravated identity theft.”
The answer, the Supreme Court said, is yes.

Prosecutors had used the threat of that punishment to persuade illegal workers to plead guilty to lesser charges of document fraud.
“The court’s ruling preserves basic ideals of fairness for some of our society’s most vulnerable workers,” said Chuck Roth, litigation director at the National Immigrant Justice Center in Chicago. “An immigrant who uses a false Social Security number to get a job doesn’t intend to harm anyone, and it makes no sense to spend our tax dollars to imprison them for two years.”
Justice Samuel A. Alito Jr. said in a concurring opinion that a central flaw in the interpretation of the law urged by the government was that it made criminal liability turn on chance. Consider, Justice Alito said, a defendant who chooses a Social Security number at random.
“If it turns out that the number belongs to a real person,” Justice Alito wrote, “two years will be added to the defendant’s sentence, but if the defendant is lucky and the number does not belong to another person, the statute is not violated.”
The most sweeping use of the statute was in Iowa, after an immigration raid in May 2008 at a meatpacking plant in Postville. Nearly 300 unauthorized immigrant workers from the plant, most of them from Guatemala, pleaded guilty to document-fraud charges rather than risk being convicted at trial of the identity-theft charge. In most of those cases, the prosecutors demonstrated only that the Social Security numbers and immigration documents the workers had presented were false.
Many of the immigrants served five-month prison sentences and then faced summary deportation. The Postville cases raised an outcry among immigrant advocates, because they transformed into federal felonies a common practice by illegal immigrants of presenting fake Social Security numbers and other documents to employers.
The court’s ruling is unlikely to aid the immigrants in the Postville cases. Most of them have long since been deported.
Justice Stephen G. Breyer, in his opinion for the court, said the case should be decided by applying “ordinary English grammar” to the text of the law, which applies when an offender “knowingly transfers, possesses or uses, without lawful authority, a means of identification of another person.”
The government had argued that the “knowingly” requirement applied only to the verbs in question. Justice Breyer rejected that interpretation, saying that “it seems natural to read the statute’s word ‘knowingly’ as applying to all the subsequently listed elements of the crime.”
He gave examples from everyday life to support this view. “If we say that someone knowingly ate a sandwich with cheese,” Justice Breyer wrote, “we normally assume that the person knew both that he was eating a sandwich and that it contained cheese.”
Five justices joined all of Justice Breyer’s opinion, and three others — Justices Alito, Antonin Scalia and Clarence Thomas — concurred in the result and in some of the reasoning.
The defendant in the case, Flores-Figueroa v. United States, No. 08-108, was Ignacio Flores-Figueroa, a Mexican citizen who had worked illegally for a steel plant in Illinois. At first, Mr. Flores-Figueroa used a false name and fake Social Security number, one that did not happen to match that of a real person. Six years later, he told his employer that he wanted to be known by his real name, and he presented forged Social Security and alien registration cards that bore numbers assigned to real people.
Mr. Flores-Figueroa eventually pleaded guilty to several immigration offenses, resulting in a 51-month sentence, but he went to trial to contest charges under the identity-theft law. He was convicted and sentenced to the additional two years mandated by the law. Monday’s decision reversed that two-year extension.
Kevin K. Russell, a lawyer for Mr. Flores-Figueroa, said his client is in federal prison in Georgia. After Mr. Flores-Figueroa has served his time, Mr. Russell said, “I assume the government will try to deport him.”
Nearly 8 million illegal immigrants are working in the United States, the Pew Hispanic Center in Washington estimates.
Stephen H. Legomsky, a professor of immigration law at Washington University School of Law in St. Louis, said Monday’s decision would have a major impact on the strategy of Immigration and Customs Enforcement, making it more difficult for the agency to press criminal charges against immigrants with no other offenses but working illegally.
“In the ordinary immigration case, this will no longer be a weapon,” Professor Legomsky said.
The Obama administration has said that it will shift the focus of immigration enforcement to employers who intentionally hire unauthorized immigrants in order to pay lower wages or otherwise lower costs. But last week the administration said agents would continue to detain illegal immigrants found in raids.