The U.S. Supreme Court returned an important piece of justice to America’s immigration struggles Monday. In Flores-Figueroa v. United States, the Court unanimously ended the Bush-era practice of using an identity theft law more appropriate to stop credit card thieves and terrorists against undocumented immigrant workers.
Justice Stephen Breyer, writing for the Court, explained federal statute 18 U. S. C. §1028A (a)(1) imposes:
“…a mandatory consecutive two-year prison term on an individual convicted of certain predicate crimes if, during (or in relation to) the commission of those other crimes, the offender “knowingly . . . uses, without lawful authority, a means of identification of another person.”
The Eighth Circuit Court of Appeals had agreed with the federal government that “knowingly” did not modify “a means of identification of another person,” and thus the government need only prove that someone used a fake Social Security number to get a mandatory two-year sentence. The Supreme Court felt that interpretation made no sense, and that the statute says what it means and means what it says. The Court ruled that the government must prove that there was intent to use someone else’s identification. This interpretation was obvious enough that all nine justices agreed.
Previously the U.S. Immigration and Customs Enforcement, or ICE, built cases against immigrants under this statute simply by proving that the social security numbers they were using were fake, not whether there was any intent to defraud another individual. But as Justice Samuel Alito noted in a concurring opinion yesterday:
“Indeed, the government’s interpretation leads to exceedingly odd results. Under that interpretation, if a defendant uses a made-up social security number without having any reason to know whether it belongs to a real person, the defendant’s liability under §1028A (a)(1) depends on chance: If it turns out that the number belongs to a real person, two years will be added to the defendant’s sentence, but if the defendant is lucky and the number does not belong to another person, the statute is not violated.”
Undocumented immigrants in this country frequently make up Social Security numbers in order to work. This accomplishes three things: (1) their employers can legally employ them; (2) the immigrants can get a job; and (3) federal taxes are withheld from their paychecks. It is estimated that this use of fake social security numbers creates a boon of some $7 billion to Social Security annually and $1.5 billion to Medicare—two government programs not available to these workers.
Under director Julie Myers, ICE began treating this use of fake Social Security numbers as identity fraud punishable under §1028A (a)(1). This allowed ICE and federal prosecutors to overcome the problems that the government’s cases against immigrants were often weak, and that with some regularity ICE allegedly violated people’s constitutional rights.
Myers’ ICE preferred highly visible large-scale workplace raids and neighborhood sweeps to basic detective work, and they generally lacked the kind of evidence that made for good court cases. In addition, because immigration law is complicated, and the immigration bureaucracy so broken, getting before a judge sometimes even allowed immigrant workers’ claims to live here legally to finally get heard. So a defendant with a decent lawyer could often win in court.
The Bush administration began using §1028A (a)(1) to force plea bargains from defendants to overcome the problems inherent in its cases against immigrants and its resulting mounting public losses in court. U.S. attorneys would make it clear that they intended to seek the mandatory two-year sentence if the defendant fought back in court.
Erik Camayd-Freixas, Ph.D. was an interpreter working for the federal government who translated for workers swept up in the May 2008 Postville, IA immigration raid, which ICE described as the largest raid of its type in U.S. history. Over 300 workers were arrested and brought to cattle pens outside town to be interviewed. Camayd-Freixas describes what happened next:
“The explanation, which we repeated over and over to each client, went like this. There are three possibilities. If you plead guilty to the charge of ‘knowingly using a false Social Security number,’ the government will withdraw the heavier charge of ‘aggravated identity theft,’ and you will serve five months in jail, be deported without a hearing, and placed on supervised release for three years. If you plead not guilty, you could wait in jail six to eight months for a trial (without right of bail since you are on an immigration detainer). Even if you win at trial, you will still be deported, and could end up waiting longer in jail than if you just pled guilty. You would also risk losing at trial and receiving a two-year minimum sentence, before being deported. Some clients understood their ‘options’ better than others.”
Whatever one thinks of immigration policy in this country, it is not OK to remove the element of intent from a criminal statute that clearly requires it. And the broader attack on the constitutional rights of immigrants to move a broken Bush policy scheme puts everyone’s rights at risk.
Homeland Security Secretary Janet Napolitano appears to understand this as she has significantly tightened the requirements for bringing immigration prosecutions and turned the focus of those prosecutions on employers. Under new Department of Homeland Security guidelines, “ICE must prioritize the criminal prosecution of actual employers who knowingly hire illegal workers because such employers are not sufficiently punished or deterred by the arrest of their illegal work force.” And ICE must, “obtain indictments, criminal arrest or search warrants, or a commitment from a U.S. attorney’s office to prosecute the targeted employer, before arresting employees for civil immigration violations at a work site.”
This new standard and the Court’s ruling will hopefully create a level of competence and respect for the Constitution in a law enforcement agency that had lost its way.
Henry Fernandez is a Senior Fellow at the Center for American Progress.