Monday, May 4, 2009

SCOTUS Decision in Flores-Figueroa v. U.S. and Undocumented Workers

Supct The Supreme Court issued its opinion this morning in Flores-Figueroa v. United States, a case involving identity theft, ruling 9-0 against the government. This case resolves a circuit split and will have significant effects on immigration enforcement like the large-scale Immigration and Customs Enforcement raids that we've blogged about occasionally.

A federal statute defines "aggravated identity theft," which carries a mandatory 2-year prison term, as when a person "knowingly transfers, possesses or uses, without lawful authority, a means of identification of another person." The question was one of statutory interpretation: exactly what must be done "knowingly"? Must a person only knowingly transfer, possess, or use something that ends up being the identification of another person? Or must a person know that what they are using is the identification actually assigned to another person. I'll put this in easier terms. If you buy a fake id, do you have to just know that it's a fake id, or do you have to also know that the id is really that of another real person, rather than simply a made-up person?

In a straightforward grammatical analysis (although the term "transitive verb" is used, which maybe goes beyond the grammar knowledge of many of us), the Court held that "knowingly" applies to all of the words that follow in the sentence: the verbs but also the object of those verbs. Thus, a person must know that false documents use the information of real other people, that they are not simply made up, in order to be guilty of aggravated identity theft.

Aggravated identity theft was one of the tools used to pressure workers at the Agriprocessor's raid last summer (see also here) to plead guilty to a lesser crime which would foreclose seeking any sort of remedy or relief under immigration law.


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What has become of the concept that ignorance of the law is no excuse for breaking it? How can an individual using an identity other than that which is their's by reason of their own identity not be guilty of identity theft? Even if the identity is or is not know to belong to a real person. If a person finds valuables, whether they know that they belong to a specific individual or that they are a collection of objects mis-placed by random and possibly deceased persons, that person is required by law to present these items with authorities for possible retrieval or be guilty of theft. Thus, a person that has identity documents that are of another name must know that the possession of same is illegal and that that identity, whether real of fictitious is stolen.

Posted by: Michael Brussow | May 5, 2009 9:51:29 AM

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