Supreme Court Reverses ID Theft Ruling; DHS Targets Employers

By Staff Report

May. 5, 2009

Enforcement on illegal immigration will shift toward employers and away from undocumented workers in the wake of a recent Supreme Court decision and a policy change by the Department of Homeland Security.

On Monday, May 4, the court ruled that an immigrant could not be charged with aggravated identity theft if he wasn’t aware that he was using a U.S. citizen’s information.

Just days before, on April 30, the DHS issued new work-site enforcement guidelines targeting employers. They represent a pivot away from the Bush administration’s approach to factory and office raids. Critics assert the Bush efforts snared illegal workers without clamping down on the companies hiring them.

In May 2008, the DHS arrested 389 illegal immigrants at an Agriprocessors meat plant in Postville, Iowa, charging 306 with aggravated identity theft, which carries a mandatory two-year prison term.

In the Supreme Court case, Carlos Flores-Figueroa, a worker at an Illinois steel plant, in 2006 presented documents with his name but false identification numbers. He pleaded not guilty to aggravated identity theft because he claimed he didn’t know he was stealing real Social Security data. He also pleaded guilty to another immigration charge.

A district court convicted Flores-Figueroa, and the decision was upheld by the 8th Circuit Court of Appeals. The Supreme Court overturned the aggravated identity theft.

Violating the statute requires that an offender “knowingly … uses, without lawful authority, a means of identification of another person.” The government argued that “knowingly” didn’t pertain to the identity theft portion of the law.

On behalf of his colleagues, Justice Stephen Breyer wrote, “As a matter of ordinary English grammar, it seems natural to read the statute’s word ‘knowingly’ as applying to all the subsequent elements of the crime.”

The new DHS work-site guidelines also turn the enforcement spotlight away from workers.

“Effective immediately, ICE [Immigrations and Customs Enforcement] will focus its resources in the work-site enforcement program on the criminal prosecution of employers who knowingly hire illegal workers in order to target the root cause of illegal immigration,” DHS said in a fact sheet.

The agency said that in fiscal 2008, under the Bush administration, only 135 out of 1,100 criminal arrests involved “owners, managers, supervisors or human resources employees.” Another 5,100 administrative arrests were made.

“The DHS under new leadership is trying to do sensible reform,” said Doris Meissner, former commissioner of the U.S. Immigration and Naturalization Service and now a senior fellow at the Migration Policy Institute. “It’s a course correction that’s needed.”

Currently, verification is not mandatory. The government-run electronic system E-Verify is derided by the Society for Human Resource Management as inefficient, ineffective and unable to detect identity theft.

The lack of a foolproof verification system means that DHS work-site raids will erroneously target some employers, said Hector Chichoni, chair of the immigration practice for the southern region at Epstein Becker Green in Miami.

Nonetheless, Chichoni urges companies to rigorously follow hiring laws.

“They better put their compliance houses in order,” Chichoni said. DHS is “going to make an example of a lot of people.”

—Mark Schoeff Jr.

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