U.S. Supreme Court Weighs in on Identity Theft and Undocumented Workers
Published: May 13, 2009

Last week the U.S. Supreme Court issued a unanimous decision rejecting the criminal prosecution of certain undocumented workers, under a federal identity theft statute, because of their use of fictitious social security or permanent resident cards. In a 9-0 decision, with several of the justices writing separate concurring opinions, the Supreme Court ruled that the federal identity theft provision at issue requires the offender to know that the identification document they were using actually belonged to another individual, as opposed to merely knowing the identification was fictitious or not their own.

The prosecutions of undocumented workers under identity theft statutes are being conducted as a recent outgrowth of workplace raids, such as the large scale ICE (Immigration and Customs Enforcement) operation in Postville, Iowa a year ago — where undocumented workers were discovered on site, and most of the workers had presented counterfeit social security and/or resident alien cards to secure their jobs. In the case before the court (Flores-Figueroa v. United States), the worker presented a counterfeit document containing fictitious information (i.e. the document did not belong to an actual person), in order to secure and maintain employment and for no other purpose. Consistent with what has recently become a common practice by federal authorities, the worker was placed on track for deportation. In an attempt to convince the worker to waive their right to a deportation hearing (and submit to expedited deportation), federal officials dangled the threat of a 2-year prison term for their alleged “aggravated” identity theft violation. In this case, the worker decided to challenge the charges. After two lower courts concluded that the worker’s presentation of false documents constituted a violation of the statute, the Supreme Court reversed the lower court rulings and declared, without qualification, that the prosecution was without legal basis since the worker did not have the requisite state of mind (i.e., the worker was not aware that the information on the document belonged to another person).

Responding to the government’s contention that proving the offender knew the document belonged to another person would create too insurmountable an obstacle for law enforcement and prosecutors, the Supreme Court stated:

In the classic case of identity theft, intent is generally not difficult to prove. For example, where a defendant has used another person’s identification information to get access to that person’s bank account, the Government can prove knowledge with little difficulty. The same is true when the defendant has gone through someone else’s trash to find discarded credit card and bank statements.

While the Supreme Court in no way struck down the validity of the criminal law at issue, it did declare that the use of this argument against undocumented workers who use fictitious identification, belonging to no one else, is not permissible. In the meantime, our nation continues to await a big picture solution to the big picture problem — i.e. what to do with the millions of undocumented immigrants who choose to continue to live in the U.S. regardless of their legal status. Pronouncements by President Obama in recent weeks continue to give a clear indication that enactment of comprehensive immigration reform, including a “path to citizenship,” is on his immediate agenda. For more information see the court’s decision in Flores-Figueroa v. United States – decided May 4, 2009.

Copyright © 2009, By Law Offices of Richard Hanus, Chicago, Illinois