Supreme Court Rules against Charging Unauthorized Immigrants with "Aggravated Identity Theft"
By Muzaffar Chishti and Claire Bergeron
Migration Policy Institute
The Identity Theft Enhancement Act references a number of underlying felony offenses, including certain immigration violations.
May 15, 2009
The US Supreme Court has unanimously ruled that an unauthorized worker who uses a false social security number to seek employment cannot be found guilty of "aggravated identity theft" unless prosecutors prove the worker knew the social security number belonged to an actual person.
The decision will limit the government's ability to charge unauthorized immigrants arrested in worksite enforcement operations with criminal convictions that have potentially lengthy jail sentences. US Immigration and Customs Enforcement (ICE) increasingly brought such charges during the later years of the Bush administration.
Flores-Figueroa v. United States centered on how the government applied the Identity Theft Enhancement Act, which President George W. Bush signed into law in 2004. The law imposes a mandatory additional two-year jail term on individuals who have been convicted of certain felony offenses in which they also used another person's identification documents. It specifically references a number of underlying felony offenses, including certain immigration violations.
Although the law was passed out of concern about thieves and Internet hackers, in recent years it has been used in immigration enforcement cases.
Between fiscal year FY 2005 and FY 2008, ICE substantially increased its worksite enforcement program and began charging workers arrested through the program with criminal rather than administrative violations. Criminal arrests from worksite enforcement operations rose sixfold from 176 in fiscal year (FY) 2005 to 1,101 in FY 2008.
It was precisely in this three-year period that ICE began charging unauthorized workers it arrested during worksite enforcement operations with aggravated identity theft. Critics of this policy have argued that ICE pursued the identity theft charges primarily to get the workers to plead guilty to lesser criminal charges, such as knowingly using a false social security number. Because of the two-year jail sentence for aggravated identity theft, many arrested workers from various worksite operations quickly agreed to a guilty plea for a lesser criminal charge.
Criticism of ICE's use of aggravated identity theft charges increased after its May 12, 2008, worksite enforcement operation at the Agriprocessors meat processing plant in Postville, Iowa. ICE agents arrested nearly 400 of the plant's workers, 306 of whom were detained on criminal charges, including aggravated identity theft.
Following the raid, many newspapers reported that when confronted with such charges, most Agriprocessors workers agreed to plead guilty to lesser criminal charges and accepted shorter jail terms and immediate deportation. At a congressional hearing in June 2008, one of the government-assigned interpreters in the Postville proceedings testified that he did not believe that many of the workers arrested understood the charges brought against them.
In Flores-Figueroa v. United States, the government argued that to charge someone with aggravated identity theft, prosecutors only had to establish that the defendant had used a social security number that belonged to another person, regardless of whether the defendant knew he was using the number of a real person.
The Supreme Court, however, found that the ordinary meaning of the phrase "knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person" implies that someone knows he is using a false identity document and that it belongs to another person.
In the Court's majority opinion, Justice Stephen Breyer noted that in most traditional identity theft cases, such as "dumpster diving" or "computer hacking," intent to "steal" another person's identity is a fundamental part of the crime.
In his concurring opinion, Justice Samuel Alito wrote that if the Court were to accept the government's interpretation of the statute, charging an unauthorized immigrant with identity theft would simply turn on chance. Whether a person could be charged with the crime would depend entirely on whether the social security number he or she made up happened to belong to someone else.
The ruling does not prevent the government from bringing many other types of criminal charges against unauthorized immigrants. Yet some immigration attorneys and members of Congress have asked the government to dismiss previous convictions against immigrants for aggravated identity theft and to consider dismissing the guilty pleas brought against the Postville workers.
Senate Committee Revisits Immigration Reform
The Senate Judiciary Committee's Subcommittee on Immigration, Refugees, and Border Security resumed its discussion on immigration reform in an April 30 hearing titled "Comprehensive Immigration Reform in 2009 — Can We Do It and How?" It was the subcommittee's first hearing on immigration reform since Senator Charles Schumer (D-NY) became its chairman in February.
Schumer was one of the key players in the passage of the 1986 Immigration Reform and Control Act (IRCA). He has publicly stated he will try to pass an immigration reform bill this year.
Witnesses testifying at the hearing primarily emphasized the potential economic and social benefits of immigration reform. Former commissioner of the Immigration and Naturalization Service and MPI Senior Fellow Doris Meissner was among the witnesses.
Witnesses opposed to "comprehensive" immigration reform — a term generally used to describe legislation that would provide a path to legal status for many of the nation's unauthorized immigrants — expressed concerns about the impact of a legalization program on border control and the ability of US Citizenship and Immigration Services (USCIS) to implement a large-scale immigration reform bill.
While Schumer has expressed willingness to work toward legislation that would provide a path to legalization for unauthorized immigrants, he has also stated that any such measure would have to include provisions aimed at reducing illegal immigration and unauthorized employment, such as more secure identification documents and a flexible system for admitting future immigrants.
USCIS: H-1B Visa Cap Not Reached
USCIS received only 45,000 petitions for H-1B visas for fiscal year 2010 as of May 4 — 20,000 short of the cap. In previous years, USCIS received enough applications on April 1, the first day it accepts them, to meet the annual limit of 65,000 visas.
Experts have said the weak US economy is the main reason for the drop in H-1B applications. The visa program has also come under criticism in recent months, as several members of Congress have said the program is prone to fraud and that H-1B workers take jobs away for US workers.
The H-1B visa program allows US employers to petition for foreign-born workers who can live and work in the United States for up to six years. Of the 65,000 visas available each fiscal year, 6,800 are reserved for nationals of Chile and Singapore under the terms of trade agreements. An additional 20,000 H-1Bs are available for applicants holding advanced degrees from US universities.
In April, Senators Richard Durbin (D-IL) and Charles Grassley (R-IA) introduced the "H-1B and L-1 Visa Reform Act," which would require all employers seeking to hire workers through the program to first attest that they made an effort to hire US workers. The bill would also increase program oversight.
The prospects for the bill, which comes at the same time Congress is considering larger immigration reform, are uncertain.
Policy Beat in Brief:
New Policy on Worksite Enforcement Operations. Bringing cases against employers that routinely hire unauthorized immigrants should be the goal of worksite enforcement operations, according to new guidelines from the Department of Homeland Security (DHS). The guidelines state that Immigration and Customs Enforcement (ICE) officers will continue to arrest and process for removal unauthorized immigrants encountered during the course of worksite enforcement operations. The new rules also call for the expanded use of "humanitarian guidelines," which allow ICE officers to release from detention unauthorized immigrants who are sole caregivers. Many immigrant advocacy groups expressed cautious optimism about the new policy guidelines. Other organizations, however, have said the new guidelines are not a significant enough departure from Bush administration policy.
E-Verify Deadline. The Obama administration has delayed until June 30 implementation of a new rule requiring all federal contractors and subcontractors to enroll in the E-Verify program. E-Verify allows employers to check whether new employees are authorized to work by entering their names and social security numbers into an online database. In June 2008, President George W. Bush signed an executive order requiring all federal contractors and subcontractors to enroll in E-Verify. Several trade groups led by the US Chamber of Commerce sued the government in December 2008 to stop the measure. Since then, implementation of the new rule has been delayed three times.
Nominations of Immigration Officials. President Barack Obama has selected John Morton and Alejandro Mayorkas to fill two of the top immigration-related positions within DHS. Morton, whom the Senate confirmed May 12, is the assistant secretary of ICE. If confirmed by the Senate, Mayorkas will be director of USCIS. ICE is responsible for interior immigration enforcement; USCIS adjudicates immigrant applications. In addition, Homeland Security Secretary Janet Napolitano recently appointed Alan Bersin assistant secretary for international affairs and special representation for border affairs, a title the press have dubbed "border czar." Bersin will lead efforts to reduce border violence and coordinate efforts to combat drug smuggling and human trafficking.
Change in Policy toward Cuba. Cuban Americans now have unlimited travel rights to Cuba and do not face a cap on the amount of money they can remit under a new policy from the Obama administration. Previously, Cuban Americans were only allowed to visit the island for two weeks every three years and monthly remittances were limited. The Obama administration has said the new policy will aid Cubans by making them less dependent on the Cuban government.
End of Temporary Protected Status for Nationals of Burundi. Temporary Protected Status (TPS) for nationals of Burundi ended May 2 per an October 2007 notice from US Citizenship and Immigration Services (USCIS). The agency estimates that between 20 and 30 people from Burundi held TPS as of May 1. The US government grants TPS to foreign nationals who are already present in the United States and whom the US government determines cannot return to their native countries because of an extended armed conflict or environmental disaster. The government first granted TPS to nationals of Burundi in October of 1997 and continually renewed the designation through 2007.
May Day Rallies. May 1 rallies in favor of immigration reform attracted fewer people in 2009 than in previous years. Just 2,000 people marched in Chicago, which has traditionally held the largest of the May Day rallies, compared with 400,000 in 2006. Some advocates attribute President Barack Obama's promise to work toward immigration reform as a factor in lower attendance. Others say that economic worries and concern over the spread of the H1N1 influenza virus, more commonly known as the swine flu, may have caused many potential marchers to stay home.
State and Local Policy Beat in Brief:
Employer Measure in Oregon. A circuit court judge in Columbia County, Oregon, overturned a measure that would have penalized county employers who hired unauthorized immigrants with a $10,000 fine and the potential loss of their business licenses. The ordinance would also have required county employers to enroll in the federal E-Verify program after December 31, 2008. After the measure was passed through a ballot initiative last November, several Columbia County business and civil rights groups sued to stop it. The judge found that federal law preempted the measure and that implementing it would go beyond the county's authority under Oregon state law.
Health Care for Unauthorized Immigrants in California. Responding to budget concerns and the current economic recession, two California counties —Sacramento and Contra Costa — have cut nonemergency medical services for unauthorized immigrants. The Board of Supervisors in Yolo County is also considering a similar measure. County officials say that cutting the services will help contain costs. Immigrant advocates and many doctors, however, have said that the cuts will result in immigrants waiting until they are seriously ill before seeking medical attention, which could cost the counties even more for emergency room visits.
In-State Tuition for Immigrants in New Jersey. The New Jersey state legislature is considering a number of bills that would allow unauthorized immigrants who attended a New Jersey high school for at least three years and graduate to be eligible for in-state college tuition. In March 2009, a 35-member commission on immigration convened by Governor Jon Corzine recommended that New Jersey permit unauthorized students to pay in-state tuition at state colleges. The governor has also expressed his support. Critics, however, maintain that allowing such a measure would be costly for the state. Ten other states currently allow unauthorized immigrants to pay in-state college tuition.