Supreme Court may review immigrant prosecutions

Identity theft charges spark rights debate

By Jerry Markon
Washington Post / October 20, 2008
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WASHINGTON - As hundreds of immigration agents raided a kosher meatpacking plant in rural Iowa in May, prosecutors summoned defense lawyers to the federal courthouse in Cedar Rapids.

Their message was blunt: The illegal immigrants arrested must plead guilty to lesser counts or face indictment on charges of aggravated identity theft and possible mandatory two-year prison terms.

"It was a hammer over everyone's head," said Dan Vondra, a lawyer who represented several of the 302 immigrants who quickly took the deal. "For these people, two years in federal prison was unbearable."

The raid highlighted the Bush administration's increasing use of the tough new charge in its crackdown on illegal immigrants at work sites, part of the escalating campaign against undocumented immigrants nationwide.

But the tactic is under attack from critics, and federal appellate courts are divided over the government's burden of proof in aggravated identity theft cases, a dispute that reached the Supreme Court on Friday.

The justices debated whether to take two cases that could determine whether prosecutors can continue to bring the charge in federal courts, where immigration prosecutions are at record levels. The court could announce its decision as soon as today.

At issue is whether prosecutors must prove that defendants knew that fraudulent Social Security numbers or other documents they used belonged to a real person as opposed to being fabricated. The Justice Department contends that prosecutors do not have to prove knowledge, and three appellate courts have rendered decisions backing that position. Three others, however, have ruled otherwise.

An adverse Supreme Court ruling likely would not affect the government's ability to charge aggravation in nonimmigration identity theft cases. A criminal who, for example, steals someone's Social Security number and empties his or her bank account clearly knows he is victimizing a real person.

But analysts said a loss for the Justice Department would damage its ability to bring aggravated identity theft cases against immigrants because most of them do not know whether their fake IDs belong to someone else.

"It would effectively gut a provision clearly designed to crack down on immigration-related identity theft," said Dan Stein, president of Federation for American Immigration Reform, which favors tough immigration enforcement.

Critics of the administration's approach say that the charge is not needed and that deporting illegal immigrants should be enough. "They're just piling on," said Jeanne Butterfield, executive director of the American Immigration Lawyers Association.

But federal officials say the charge is a key part of their arsenal because its penalties are substantially tougher than those of other immigration counts.

Congress created the aggravated identity theft charge as part of a 2004 law targeting identity theft broadly. The felony charge is defined as knowingly transferring, possessing, or using "without lawful authority, a means of identification of another person."

The cases the court is considering, which also arose in Iowa, involve Mexican immigrants - Ignacio Flores-Figueroa and Nicasio Mendoza-Gonzalez - who used false identification to get jobs at a steel plant and a pork-processing plant.

Both said the government failed to prove that they knew the fraudulent documents belonged to real people. Federal judges ruled that the government did not have to prove that, and both were convicted of aggravated identity theft.

The US Court of Appeals for the 8th Circuit upheld both convictions, prompting the Supreme Court review. It is unclear which of the cases the court may take.

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