This is an update to a previous thread, Supreme Court to Hear Case Concerning Illegals & ID Theft. The US Supreme Court has unanimously rejected tactics of the federal government in pursuing Identity Theft charges against undocumented workers as a means to enforce immigration laws.

More from the American Immigration Law Foundation:

American Immigration Law Foundation

For Immediate Release

AILF Lauds Today’s Supreme Court Decision
Supreme Court Overrules Government Tactics to Criminalize Immigrant Workers
May 4, 2009

Washington, DC – AILF’s Legal Action Center applauds a unanimous decision today of the U.S. Supreme Court, that rejects the government’s efforts to overreach in prosecutions of immigrant workers. The Court held that to convict a defendant of aggravated identity theft, which carries a mandatory minimum sentence of two years in prison, the government must establish that the person knew the identification belonged to another person.

“The Court sent a clear message that the government must not misuse a criminal statute intended to combat actual identity theft in order to drop a hammer on unauthorized workers,” said Nadine Wettstein, Director of the Legal Action Center.

In the case before the Court, a worker, Ignacio Flores-Figueroa, had given his employer counterfeit Social Security and alien registration cards in order to continue working. The government charged Flores with misusing immigration documents, but also elevated the charges by including a charge of aggravated identity theft. The government argued that to convict on that charge, it did not have to prove that Flores knew the number actually belonged to another person.

The Court disagreed. It rejected the government’s claim that it would be too hard to prove a defendant knew the identification belonged to someone else. Significantly, the Court said that when the government properly charges defendants with this crime, the government should have no difficulty proving “knowledge:”

…[I]n 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…”

The government charged more than 300 workers in Postville, Iowa in 2008 with violating this very statute. Because of the threat of serving two years in prison, almost all of the Postville defendants pled guilty to lesser charges in expedited hearings that led to widespread condemnation.

Mr. Flores-Figueroa was represented at the Supreme Court by Kevin Russell of Howe and Russell of Bethesda, Maryland. Amicus Curiae (“friend of the court”) briefs were filed by several organizations, including Washington Square Legal Services, New York, on behalf of approximately 20 organizations.

25 Thoughts to “Supreme Court Unanimously Overrules Government on Undocumented & Identity Theft”

  1. Elena

    Very interesting, unanimous decision.

  2. anona

    I agree with the courts that it wasn’t identity theft and that it would be difficult to prove intent as most workers did not know whose number they were using or even that they were using someone else’s number. I do wonder if this decision will cause unintended effects. For example, citizens making up a number when they apply for a new job so that income doesn’t tie to their taxes. They could make the same claim that it wasn’t identity theft since they didn’t know whose number they were using. Would they get off without charges?

  3. Moon-howler

    Most court cases have unintended consequences it seems. Good question, anona.

  4. NoVA Scout

    short answer, anona: they would not be charged with identity theft. They might violate some other law, but neither the situation you describe nor the facts of this case describe identity theft. The government was just piling on and the Supremes (all of them) called them out on it.

  5. DB

    Okay, let me see if I get this straight…If I use a SSN that I know does not legally belong to me, I’m immune to identity theft charges so long as I don’t know whether or not the number belongs to some one else? So ignorance is actually a defense after all? So as long as I use a false SSN for employment but not attempt to garner credit with the number, then I have not committed identity theft? So it does not matter then that if there is an actual person to whom the number belongs to, and I’m screwing them when extra W2’s show up in their mailbox, or they end up audited by the IRS because they failed to claim the wages I’m making on their behalf? So that’s not identity theft? So there has to be intent to defraud, or knowledge of the fact that the person has committed fraud? I’m sorry, but the mere fact that a person knowingly used a SSN, that they knowingly were aware did not legally belong to them, makes them liable in my book for identity theft.

  6. Slowpoke Rodriguez

    Well, last I checked, you can still use “I didn’t mean to kill him, I was just shooting him in the head and he up and died” and “I’m suing the homeowner who shot me because I can’t earn an income robbing houses anymore with a bullet in my butt”, so this fits right in.


    They got it totally right…ALL of them! A consensus! How about that?! I get so sick of the “dark side” bemoaning the use of the fake documents as “identity theft”. It is not identity theft. Identity thieves use the information THEY OBTAIN on a specific person to raid bank accounts, get credit etc…certainly not for a JOB!

  8. NoVA Scout

    DB and SR may want to read the decision and then comment. It’s not often one gets unanimous decisions out of this group. There might be some logic behind their holding.

  9. Slowpoke Rodriguez


    TWINNNAAAADDDD……I ammmm yourrr faaaaather. “Dark Side”. Good Lord.

  10. Moon-howler

    I can’t think of the last time there was a unanimous decision out of this Supreme Court.

  11. kelly3406

    Actually the court stated that the charge of “aggravated” identity theft could not be applied in this case, but the offense of misusing immigration documents still holds.

    The illegal immigrants cannot be convicted of the more serious crime without proof, which is fair.

    They should still be deported immediately.

  12. This case says the government has to prove intent. It upholds the principle of innocent until proven guilty.

  13. Alanna

    You do realize that the majority aren’t being deported, right?

  14. hello

    Hi Twinad, you said “I get so sick of the “dark side” bemoaning the use of the fake documents as “identity theft”. It is not identity theft.”

    How would you feel if the IRS sent you a letter saying that you owed $20k in back taxes for a job you never worked at? It happens more and more and it’s not so easy for these people to convince the IRS that they didn’t work in a chicken processing plant in Iowa when they live in VA. It takes years and allot of money.

    I think that if they aren’t going to charge these people with ‘identity theft’ they should come up with a law to charge them with that is tied to very strict penalties.

  15. anona

    My mother who registered for college in the late 70’s. She had married young and never worked. The only SS number she knew was my dad’s. The college forms asked for her SS number. She had no idea what is was and thought she wasn’t working for them so why would they even need it. She made up a random number. Later when she went to do something related to school, they asked for her number to look her record up…she told them she made one up and she had no idea what hers was or what the one she made up was. It took 4 years to get the mess straightened out because by then the random number was on everything and things weren’t so computer oriented back then. They used punch cards to register for classes. I guess it is good that she wasn’t prosecuted for identity theft. And some random person out there received very good grades for 4 years at university if they should ever need a transcript.

  16. Rick Bentley

    Totally insane.

    I guess Spanish speakers can actually get a pass on following all our other laws as well, since they are unaware of our laws.

    This is the kind of stuff that makes many of us hate our government and hate the elites who run it.

  17. kelly3406

    I do realize that the majority is not being deported. Nevertheless, the government still must do its job, which is to convict and deport illegal aliens whenever possible. The risk of prosecution is very low for illegal immigrants, but those that commit other crimes should be deported immediately. There are other examples of offenses in which the majority usually gets away with it (e.g. tax evasion, drug use), but the government still prosecutes whenever possible.

  18. Rick Bentley

    Tax evasion usually either gets you probation, or a Cabinet nomination.

  19. Gainesville Resident

    Innocent people can get harmed by use of their social security number. Not only the back taxes case that hello pointed out, but other potential issue. Someone with a security clearance that has back taxes owed to IRS could lose his/her clearance. Picking random social security numbers, while not having the “intent” of purposely stealing an identity, still has potential serious consequences for innocent bystanders. What’s the answer? I don’t know, but it isn’t to let someone get away without any consequences, in my opinion.

    I also agree with Rick, for most of us tax evation would land us in jail. For our illustrious former DC Mayor – it gets him a slap on the risk. For some other people like Geitner, who’s explanation wouldn’t pass the sniff test, a nice cabinet post. At least Daschle and a few others had their nominations pulled as a result. Not to say that it is just the Dem side, there are probably plenty of Republican high ups that are doing the same thing. The average citizen, if they tried that, would be behind bars, and their assets seized, etc. Marion Barry was supposedly “too busy” to pay his taxes. What a laugh! He apparently was behind on DC taxes too – nice to have one of your elected officials stiffing his own local gov’t!

  20. Rick Bentley

    Too busy to pay taxes

    OK to use a fake number if you don’t ABSOLUTELY KNOW it belongs to someone else – meanwhile even businesses and the government have constructed this charade where everyone has plausible deniability as to whether a number is fake

    And bonuses to go round for the ruling class

    What a brave new world. No wonder America appears from some angles to be falling apart at the seams.

  21. Rick Bentley

    The Supreme Court is sympathetic to pedophiles and identity theives and consider browing porn in a public library an inalieble right. I consider our Supreme Court a big joke, exemplified by Bush vs. Gore where each side abandoned principle and we saw that political sympathies trump the “principles” they supposedly espouse. States’ rights for matters not in the Federal domain? Scalia, Thomas, Rehnquist gave that a rest in favor of Federal activism.

  22. Rick Bentley

    I try to rise above this cynicism but when it comes to the Supreme Court I’ve given up trying. That is one institution that in definitely failing us.

    It always did … Dred Scott, etc.

    I think we should stop this joke of “nominating” these guys through the political branches and appoint some type of board that puts forth nominations. Then the extremists, the Scalias and Ginsburgs won’t get these absurd nominations and we might have a court that resembles American mainstream thought.

  23. NoVA Scout

    I assume we would have a very different discussion if at least some of the commenters read the opinion. It seems a fairly sensible decision to me, with no possible negative effect on anything.

  24. Rick Bentley

    I read the decision. It’s insane.

    Think of it this way. Pretend I throw an anvil out the window of a tall building. Quite possibly it kills a passerby. According to the Supreme Court, if i didn’t aim for anyone in particular I should not be charged for attempted murder – after all, there’s less than a 50% chance the anvil will hit anyone. I should just be charged with littering.

  25. Rick Bentley

    The average American citizen would never be afforded these liberties. The court like so many of our corrupt and morally bankrupt institutions attempts to give every advantage to lawbreakers that it presumes are well-intentioned or in need of charity.

    There was a time when breaking the law lead to punishment instead of every bleeding heart liberal getting on a stump about the need for comprehensive reform.

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