May 11, 2009
One of the most pervasive problems in worksite enforcement is the ready availability of fraudulent documents to those who would work without authorization. Employers need only check that the documents “reasonably appear to be genuine;” the government’s E-Verify program is meant to provide another layer of inquiry through which employers can access government databases to verify that a document presented matches information in the government’s databases - for example, that the social security number on the card is not made-up or matched to a different person’s name.
One of the government’s enforcement strategies has been to charge workers whose fraudulent documents happen to match information from an actual person with “aggravated identity theft,” rather than solely with misuse of documents for an immigration purpose (i.e. completing an I-9). On May 4, 2009, the U.S. Supreme Court issued a decision in Flores-Figueroa v. United States, overturning the government’s ability to use that particular criminal charge in the I-9 context without proving that the worker knew the identification was not only fraudulent, but also matched the information of a real person.
Flores-Figueroa challenged the use of the aggravated identity theft statute at 18 U.S.C. § 1028A(a)(1) to punish undocumented workers who present identification documents that they are unaware belong to another person. The aggravated identity theft statute played a pivotal role in the May 2008 raids on the Agriprocessors meat packing facility in Postville, Iowa, which were the largest such raids at the time. During this enforcement action, more than 300 immigrant workers were arrested, and many of them subjected to immediate deportation under threat of prosecution under 18 U.S.C. § 1028A(a)(1).
The aggravated identity theft statute imposes a mandatory prison term of 2 years to anyone who, in committing a predicate crime, “knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person.” The issue in front of the Supreme Court was whether the term “knowingly” should be read to extend to someone who does not know that the means of identification he has unlawfully transferred, possessed, or used “belongs to another person.” The petitioner, Ignacio Flores-Figueroa, had been unaware that the counterfeit Social Security and alien registration cards he had presented to his employer actually contained numbers assigned to real people. Despite his lack of knowledge of these material facts, he was convicted under the aggravated identity theft statue, and his conviction was upheld by the United States Court of Appeals for the Eighth Circuit.
In a unanimous decision resolving a split among the circuits, the Supreme Court rejected the Government’s assertion that the statute failed to impose a knowledge requirement requiring it to show that the defendant possessed knowledge that the numbers on the counterfeit documents were numbers assigned to real people. In a decision authored by Justice Breyer, the Court pointed out that “[t]here are strong textual reasons for rejecting the Government’s position.” For instance, adverbs such as “knowingly” are ordinarily interpreted to modify both a transitive verb — such as the statute’s verbs “transferred,” “possessed,” or “used” — as well as the direct object of the transitive verb — here, “a means of identification of another person.” Although a statute might provide sufficient context so that a reader may understand the word “knowingly” to be used in a different way, the statute at issue did not present any special context to overcome this ordinary English usage.
In addition, the Court examined the legislative history of the aggravated identity theft statute and found that “the examples of theft that Congress gives in the legislative history all involve instances where the offender would know that what he has taken identifies a different real person.” These instances cited in the legislative history include “dumpster diving,” “accessing information that was originally collected for an authorized purpose,” “hack[ing] into computers,” and “steal[ing] paperwork likely to contain personal information.” H.R. Rep. No. 108-528, at 4-5.
Finally, the Court rejected the Government’s argument that requiring it to prove that a defendant knew the means of identification at issue belonged to another person would lead to practical enforcement problems. Explained the Court: “For one thing, in the classic case of identity theft, intent is generally not difficult to prove…For another thing, to the extent that Congress may have been concerned about criminalizing the conduct of a broader class of individuals, the concerns about practical enforceability are insufficient to outweigh the clarity of the text.”
The Court’s holding in Flores-Figueroa v. United States will have important effects in limiting the scope of ICE’s enforcement authority during workplace raids. In Postville, the Government had been able to use the threat of prosecution under § 1028A(a)(1) and the mandatory prison time of 2 years imposed by the statute to obtain plea agreements to lesser charges from the facility’s hundreds of unauthorized workers, as well as waivers of their rights to contest their deportation. By limiting the use of the aggravated identity theft statute to situations where the defendant actually knows that he is using a Social Security number or other means of identification that belongs to a real person, the Supreme Court’s decision provides undocumented workers with an important tool in contesting their arrests in enforcement efforts. While the decision might have arrived too late to help the Postville workers, it will be of great benefit in protecting the due process rights of other undocumented workers who are swept up in future worksite enforcement efforts.
