Today the U.S. Supreme Court heard oral argument in the case of Flores-Figueroa v. U.S.A. The case will resolve the question of whether a worker who uses a false identity to work is guilty of “aggravated identity theft” even if he or she had no idea that the false information pertained to a live human being.

 

The Associated Press describes the case: 

Ignacio Carlos Flores-Figueroa, an undocumented worker from Mexico, made a curious and undeniably bad decision. After working under an assumed name for six years, he decided to use his real name and exchanged one set of phony identification numbers for another.

The change made his employer suspicious and the authorities were called in. The old numbers were made up, but the new ones he bought happened to belong to real people. Federal prosecutors said that was enough to label Flores-Figueroa an identity thief.

 

The Supreme Court will hear arguments Wednesday on prosecutors' aggressive use of a new law that was intended to strengthen efforts to combat identity theft. In at least hundreds of cases last year, workers accused of immigration violations found themselves facing the more serious identity theft charge as well, without any indication they knew their counterfeit Social Security and other identification numbers belonged to actual people and were not made up.

 

The government has used the charge, which carries a mandatory two-year minimum prison term, to persuade people to plead guilty to the lesser immigration charges and accept prompt deportation. Many of those undocumented workers had been arrested in immigration raids.

 

The case hinges on how the justices resolve this question: Does it matter whether someone using a phony ID knows that it belongs to someone else?

The National Immigrant Justice Center, along with more than a dozen other legal service providers and advocacy groups, signed on to a friend of the court brief for the case saying it does. The New York Times editorial board agrees in an editorial published today:

The federal aggravated identity theft statute is aimed at the most serious forms of identity theft — and it says the theft must be done knowingly. Congress wanted to punish those who take the identities of other people to do them harm, typically by trying to drain their bank accounts. Mr. Figueroa did not have the intent necessary to violate this law. He was guilty of identity fraud — a separate, and lesser, crime.

Many undocumented workers, most notably the Agriprocessors, Inc., meatpacking plant workers who were arrested last May during an immigration raid in Postville, Iowa, have no idea whether the social security number they use to work is connected to a real person. Furthermore, most of these workers have no intention to use the number to steal anything from anyone. But in Postville and other places, the federal government has used the aggravated identity theft charge as a blanket strategy to prosecute undocumented workers, regardless of whether they knew they were using another person’s social security number. Of the nearly 400 workers arrested at Agriprocessors, about 300 were charged with this crime. But in the months following the raid, the men and women who were charged with the crime have told lawyers and other advocates that they had no idea that the “working papers” they purchased in order to work at Agriprocessors contained numbers that represented another person’s identity.

 

Erik Camayd-Freixas, Florida International University professor who interpreted for Agriprocessors workers during legal proceedings, told NIJC: “The workers understood their papers were not official government documents, but the extent of their understanding was that this was just the plant’s requirement. They had no idea these papers would go to the U.S. government. They had no reason to make that link.

 

The consequence of unfair application of the aggravated identity theft charge is that men and women who have committed no offense other than being undocumented may be subjected to an exceptionally harsh punishment if they happen to obtain a number that belongs to another person. Regardless of whether they knew that the social security numbers they used belonged to another person, the Agriprocessors workers were left with two choices: fight their case, as Flores-Figueroa has done, and risk long-term detention or an ultimate conviction that carries a minimum two-year jail sentence; or plead guilty to a lesser charge and agree to be deported without the opportunity to see an immigration judge. Everyone who was charged with aggravated identity theft accepted the plea agreement and deportation.

 

Why is automatic deportation so concerning? Because U.S. Congress did not intend for our country’s immigration laws to allow for automatic deportation, even for someone who is undocumented. Some defenses against deportation still exist – for example, an individual who fears she may be persecuted if she is forced to return to her native country may apply for asylum. There are also special visas for victims of crime who are needed to testify in trials of certain violent crimes, including some domestic violence offenses. Finally, the laws include “safety valves” so that in some exceptional humanitarian situations, people may be permitted to stay in the United States rather than be deported.

 

But this system breaks down when workers, the majority of whom came to the United States and purchased false identity documents for the sole purpose of earning money to support their families, are forced to accept immediate deportation so they can get out of jail and start looking for work again. As NIJC reported in our Winter 2009 policy brief on the topic:

Forty-four former Agriprocessors, Inc., workers who were not charged with federal crimes have received certification to apply for U Visas based on abuse they suffered at the plant. Yet many others who may have been subjected to the same abuses or may have been eligible for asylum were deported because they never had an opportunity to seek immigration legal counsel. While Article 14 of the UDHR provides that every individual has a right to seek asylum, ICE appears to have denied individuals this right following the Postville raid.

Update: The Associated Press is now reporting that during today’s oral argument, Supreme Court justices seemed sympathetic to the idea that workers who do not know they are using another person’s social security numbers should not be charged with the harsh aggravated identity theft crime. The court’s decision is expected this spring.