Immigration Law

Court Bars Identity-Theft Law as Tool in Immigration Cases

By Robert Kraft

As reported in the New York Times, unauthorized immigrants got a big break from the U. S. Supreme Court this week. The Court ruled unanimously that prosecutors cannot use federal identity-theft laws against illegal immigrants who use Social Security numbers belonging to U.S. citizens in order to get jobs. Here are excerpts from the Times article:

The question in the case was whether workers who use fake identification numbers to commit some other crimes must know they belong to a real person to be subject to a two-year sentence extension for 'aggravated identity theft.'

The answer, the Supreme Court said, is yes.

Prosecutors had used the threat of that punishment to persuade illegal workers to plead guilty to lesser charges of document fraud.

'The court's ruling preserves basic ideals of fairness for some of our society's most vulnerable workers,' said Chuck Roth, litigation director at the National Immigrant Justice Center in Chicago. 'An immigrant who uses a false Social Security number to get a job doesn't intend to harm anyone, and it makes no sense to spend our tax dollars to imprison them for two years.'

Justice Samuel A. Alito Jr. said in a concurring opinion that a central flaw in the interpretation of the law urged by the government was that it made criminal liability turn on chance. Consider, Justice Alito said, a defendant who chooses a Social Security number at random.

'If it turns out that the number belongs to a real person,' Justice Alito wrote, '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.'

Justice Stephen G. Breyer wrote that the case should be decided by applying 'ordinary English grammar' to the text of the law, which punishes an offender who 'knowingly transfers, possesses or uses, without lawful authority, a means of identification of another person.'

The government had argued that the 'knowingly' requirement applied only to the verbs in question. Justice Breyer rejected that interpretation, saying that 'it seems natural to read the statute's word ‘knowingly' as applying to all the subsequently listed elements of the crime.'

He gave examples from everyday life to support this view. 'If we say that someone knowingly ate a sandwich with cheese,' Justice Breyer wrote, 'we normally assume that the person knew both that he was eating a sandwich and that it contained cheese.'

About 8 million illegal immigrants are working in the United States, the Pew Hispanic Center in Washington estimates.

Stephen H. Legomsky, a professor of immigration law at Washington University School of Law in St. Louis, said Monday's decision would have a major impact on the strategy of Immigration and Customs Enforcement, making it more difficult for the agency to press criminal charges against immigrants with no other offenses but working illegally.

'In the ordinary immigration case, this will no longer be a weapon,' Professor Legomsky said.

The Obama administration has said that it will shift the focus of immigration enforcement to employers who intentionally hire unauthorized immigrants in order to pay lower wages or otherwise lower costs. But last week the administration said agents would continue to detain illegal immigrants found in raids.

Full post as published by Immigration Law Answers Blog on May 05, 2009 (boomark / email).