An immigrant’s ID in the high court

Savage is a Times staff writer.

The Supreme Court said Monday that it will decide whether the government can use new identity theft laws to send illegal immigrants using fake identification cards to prison or to force them to leave the country.

The Bush administration, as part of its crackdown on workers who are here illegally, has increasingly relied on prosecutors and criminal laws to punish the offenders, rather than simply sending them into immigration courts.

“It’s a bargaining chip,” said Dan Stein, president of the Federation for American Immigration Reform, which favors tough enforcement of the laws. The prospect of a long prison term can persuade many immigrants to accept a speedy deportation, he said.

But this legal tactic has run into trouble in some areas, including California and elsewhere on the West Coast.


Four years ago, Congress added a two-year mandatory prison term for anyone who “knowingly transfers, possesses or uses . . . identification of another person.” This law clearly applies to the classic cases of identity theft, such as an individual who uses another person’s private information to empty a bank account or to charge items to a credit card.

But judges have divided over whether immigrants can be punished for “knowingly” stealing the identity of another person whenever they are caught using a Social Security number that is not their own. Often, the immigrants say they thought they had bought phony ID cards, not numbers assigned to real people.

Last year, the U.S. 9th Circuit Court of Appeals in San Francisco ruled that the government must prove that an immigrant knew he was using a real person’s number to win a conviction and the two-year prison term. Appellate judges in Boston and Washington, D.C., took the same view.

Meanwhile, three other U.S. appeals courts -- in St. Louis, Atlanta and Richmond, Va. -- agreed with the government and ruled that prosecutors must show only that the immigrant knew he was using a phony ID card. Both sides in this dispute said the Supreme Court would have to resolve the matter, and the justices said Monday that they would do so.

The court agreed to hear the case of Ignacio Flores-Figueroa, a Mexican who was here illegally and had worked at a steel plant in East Moline, Ill. Two years ago, he pleaded guilty to using a false document and entering the country illegally, and he pleaded not guilty to an extra charge of aggravated identity theft. At his trial, he testified about purchasing identity cards, but he said he did not know the Social Security numbers were those of real people. But the judge convicted Flores-Figueroa of identity theft as well and sentenced him to more than six years in prison.

Immigrants-rights lawyers object to this use of the identity theft laws. “It’s a heavy-handed tactic. The threat of an extra two years in prison can force them to accept deportation without a hearing,” said Jean Butterfield, executive director of the American Immigration Lawyers Assn.

But such a use makes sense, Stein said. “He knew the Social Security number he was using was not his own,” he said of the defendant, noting that immigrants can delay their deportation by fighting their cases through the immigration system. A criminal conviction with a long prison term “gives leverage to the government.”

The court is expected to hear arguments in Flores-Figueroa vs. U.S. in January but will not rule until a new administration has taken office.


Last year, the Bush administration launched a more aggressive drive to pursue illegal immigrant workers and the companies that hire them.

After Congress failed to pass immigration reform in June 2007, officials at the Department of Homeland Security warned that they would begin using all the tools at their disposal to enforce existing immigration law.

One of the first major uses of identity theft charges occurred in January 2007, when 53 employees held in raids of meatpacking plants the previous month were criminally charged. Since then, Homeland Security has ratcheted up use of the tactic, culminating in a May 2008 raid at an Iowa meatpacking plant in which 389 illegal immigrants were arrested and nearly 300 were sentenced for document fraud.



Times staff writer Nicole Gaouette contributed to this report.