Review could restrict immigration crackdown

High court to hear Mexican's appeal in ID-theft case

By Jerry Markon
Washington Post / October 21, 2008
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WASHINGTON - The Supreme Court accepted a case yesterday with significant implications for the government's crackdown on illegal immigration. The high court agreed to review whether prosecutors have to prove that defendants in aggravated identity theft cases knew they were victimizing a real person.

The justices will hear the appeal of Ignacio Flores-Figueroa, a Mexican immigrant who used false identification to get a job at a steel plant in Illinois. He was convicted of aggravated identity theft and other counts and sentenced to more than six years in prison.

Flores-Figueroa argued that the government failed to prove that he knew the fraudulent documents belonged to a real person as opposed to being fabricated. Lower courts ruled that the government did not have to prove that, accepting the Justice Department's position in this and other aggravated identify theft cases. Three appellate courts have rendered decisions backing the government.

But three other appellate courts have ruled otherwise, and the Supreme Court is expected to resolve the dispute.

The importance of the case to prosecutors was shown during a raid on a kosher meatpacking plant in rural Iowa in May. As hundreds of immigrations agents descended on the plant, 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.

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 the split among appellate courts over the government's burden of proof in aggravated identity theft cases has prompted the Supreme Court review.

An adverse ruling probably would not affect the government's ability to charge aggravation in non-immigration 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 in the Flores-Figueroa case would devastate 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. Officials pointed out that terrorists used false identities, a sensitive issue since the Sept. 11, 2001, attacks. "Post 9/11, we also recognize that identity theft poses a security risk to all of us," Deborah Rhodes, senior associate deputy attorney general, said in July at a congressional hearing on the Iowa raid on an Agriprocessors plant in Postville. The raid was the largest criminal work-site enforcement operation in US history.

US Immigration and Customs Enforcement, which led the raid, declined to comment on the pending Supreme Court case. Pat A. Reilly, an ICE spokeswoman, said the agency "is going to seek the highest-level charges it can get on anyone it encounters in a work-site operation or any other kind of illegal activity."

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 conviction of Flores-Figueroa in federal court in Iowa was upheld by the US Court of Appeals for the Eighth Circuit.

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