Identity Theft in Immigration Cases

A federal criminal statute, 18 U.S.C. 1028A(a)(1), imposes a mandatory two-year prison sentence on anyone convicted of other crimes if, during the commission of those other crimes, the offender “knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person.” This statute has been widely used to prosecute illegal workers.

In Flores-Figueroa v. United States, the U.S. Supreme Court has made it difficult to use this statute in immigration cases. In this case, a worker gave his employer a false name, birth date, and Social Security number, along with a counterfeit alien registration card. The Social Security number and the number on the alien registration card weren’t those of a real person.

Six years later, the worker gave his employer new counterfeit Social Security and alien registration cards. This time, the numbers on both cards were those of a real person. He was prosecuted for entering the U.S. without inspection, misusing immigration documents, and aggravated identity theft, which carried the mandatory two-year prison sentence.

The Court ruled that the worker had to know that the cards actually belonged to a real person to be guilty of aggravated identity theft. Most of the time, the government won’t be able to prove this level of knowledge. A worker will know that the cards don’t belong to him but won’t have a clue as to whether the numbers on the cards are completely fake or belong to a real person.

According to the New York Times and the Los Angeles Times, the Court’s ruling is likely to boost the Obama administration’s plan to target employers that knowingly hire illegal workers, rather than focusing on illegal workers like the Bush administration did. If this is the case, the Supreme Court has played an odd sort of role in immigration reform.