April Showers bring May Flores Decision from the Supreme Court

Having spent much of this past semester writing and researching my Legal Writing brief at the University of Minnesota Law School, I became intimately acquainted with the aggravated identity theft statute 18 USC 1028A.  Today, almost a year since it was used to deport nearly 400 Latino immigrants after the ICE raid in Postville, the Supreme Court issued its decision on Flores-Figueroa vs. United States. Justice Breyer authored the opinion which explained that for aggravated identity theft, the defendant must have known they were misappropriating an actual person’s identity.  All too often in the past, 1028A was used as a catch-all statute to compound the sentences of unwitting immigrants who were given papers and had no knowledge that their Social Security numbers belonged to a real person.[Stout, David. “Supreme Court Rules Against Government in Identity-Theft Case”]

In Postville, for example, local sources state that the management of Agriprocessors actively provided such false documents for the immigrant workers from Central America.  Within a week of that raid in May of 2008, chained groups of immigrants were brought before a judge holding court in a trailer. They were told that they had stolen people’s Social Security numbers [a word few of them knew], and that they should accept the government’s offer of 6 months and then deportation.  Most took the deal, though they understood little English and even less about the complex American immigration system.[Stout, David. “Supreme Court Rules Against Government in Identity-Theft Case”]

Ignacio Flores-Figueroa was a Mexican immigrant working in an Illinois steel facility.  Unbeknownst to him, the papers he had procured bore the name and number of an actual person. When he was caught, Ignacio pled guilty to the immigration charges but refused to accept the aggravating sentence of identity theft.  While the 8th Circuit upheld the conviction, the Supreme Court’s decision today means that Ignacio will serve less time before he is deported.  However, this case, argued by Stanford University Law Professor Kevin Russell, will hopefully change, if not eliminate, ICE employer raids in the future. [Stout, David. “Supreme Court Rules Against Government in Identity-Theft Case”]  While real identity thieves will still be subject to the compounding sentencing of 1028A, vulnerable immigrants will no longer be forced to spend extra time in prison before returning to their families.  As Postville prepares for its first anniversary march of last year’s ICE raid, one can only think Flores-Figueroa came a year too late.

Post-Postville America

Though it only occurred last May, the ICE raids in Postville, Iowa, keep resurfacing to the forefront of immigration policy in the United States. On February 25, Department of Homeland Security Secretary Janet Napolitano ordered a review of a raid the day before. This raid on the Yamato Engine Specialists engine repair shop in Washington resulted in the arrest of 28 individuals and the first such raid under the new Obama administration (Stark, John and Anna Walters. Bellingham Herald). A top official suggested that Napolitano did not know of the raid beforehand, stating that, “She was not happy about it because it’s inconsistent with her position, and the president’s position on these matters.” The fate of these workers, most of whom await trial in a Tacoma detention center, will also signal the resolve of the Obama administration to focus more on noncompliant employers rather than the employees. So close to the events of Postville where nearly 400 immigrants were arrested and adjudicated in rapid fashion, Napolitano’s review of the raid will demonstrate how far we’ve come as a nation in ten months. (http://www.nytimes.com/2009/02/26/washington/26immig.html?emc=tnt&tntemail1=y)

Also last week, the Supreme Court heard the oral arguments of Flores-Figueroa v. United States. This case is a test case aimed at getting the Supreme Court to issue a binding national ruling on identity theft. 18 U.S.C. §1028 is an aggravated identity theft statute which extends criminal sentences by two years per charge. §1028 intersects with immigration law, however, when undocumented immigrants make up Social Security numbers which happen to belong to real people.

Six District Courts are evenly split over the extent of mens rea (foreknowledge) required for this crime. Currently, six District Courts are evenly divided in the interpretation of the ambiguous term “knowingly” within 18 U.S.C. §1028(a). The 4th, 8th, and 11th Courts have ruled no mens rea as to the person’s identity is necessary, while the 1st, 9th, and D.C. Circuits have ruled it a requirement. United States v. Villanueva-Sotelo, 380 U.S. App. D.C. 11, 515 F.3d 1234 (D.C. Cir. 2008)(explaining necessity for mens rea because theft is not mere misappropriation); United States v. Sanchez, 2008 U.S. Dist. Lexis 35460 (E.D.N.Y. April 30, 2008)(requiring government to prove scienter for identity theft); United States v. Mejorada-Cordova, 2008 U.S. Dist. LEXIS 44634 (D. Utah, June 5, 2008); United States v. Salazar-Montero, 520 F. Supp. 2d 1079 (N.D. Iowa 2007) (mens rea needed due to statutory ambiguity).

“There’s a basic problem here,” said Chief Justice John G. Roberts Jr.. “You get an extra two years if it just so happens that the number you picked out of the air belonged to somebody else.” Kevin Russell, attorney for the defendant, is arguing that, at the very least, the rule of lenity requires that ambiguous statutes such as §1028 be resolved in favor of the defendant in criminal cases. Ignacio Flores-Figueroa worked with false identification for years at a steel plant in Illinois. After six years, he changed his false identification documents and was arrested shortly thereafter. The Eighth Circuit convicted Flores on the basis that he knowingly used false identification, despite the fact he was ignorant of a true person’s identity. (Faitek, Adam. New York Times)

10 months ago in Iowa, 270 of the 400 immigrants working in a kosher meatpacking plant were criminally charged with using false identification. A marked departure from past instances where immigrants had faced only civil charges, the predominantly Guatemalan Spanish-speakers were penned in a cattle-barn and hurried through the mobile trailer-courthouse. Prof. Erik Camayd-Freixas of Florida International University, an interpreter who risked his professional life to speak out against the atrocities he witnessed that May, stated that most of the immigrants had no idea what a Social Security card was, let alone that they had “stolen” someone’s identity.

While much of this may seem like obscure legal arguments, what this realistically means for immigrants charged under §1028 is that, rather than the speedy deportation for which they were hoping, they may have to spend years in an American jail. Anxious to return to any jobsite to earn precious money for their families, the long sentences associated with §1028 condemn them and their families to a meager existence. Moreover, the arbitrary nature of §1028’s application means that some unlucky individuals who picked the wrong number are serving the same jail sentence as professional thieves who bilked thousands of dollars from unsuspecting internet users.

With the oral arguments in, the Supreme Court is now deliberating. Their published opinion will be released later this year, and it will certainly have far-reaching repercussions for the immigrant community. Hopefully their decision will ensure that in a post-Postville America immigrants will be guaranteed a fair civil trial.