What Court Ruling on Identity Theft Means to Migrants

By Dr. Erik Camayd-Freixas

In May, the U.S. Supreme Court ruled in favor of Ignacio Flores-Figueroa, a Mexican migrant worker from Illinois convicted of identity theft in 2007. Like most migrant workers, Flores-Figueroa did not know that the social security number in the false papers he was forced to buy in order to get work was a number that actually belonged to another person.

The crime of identity theft was established by an act of Congress in 1998, to deal with the growing problem of people stealing credit cards and personal information to empty bank accounts or get thousands of dollars in credit under someone else’s name. After 9/11/2001, authorities feared that false identities could also be used to facilitate acts of terrorism. This led to the Identity Theft Penalty Enhancement Act of 2004, which made it an aggravated felony punishable by an additional two-year minimum prison sentence.

Since 2006, overzealous prosecutors realized they could use this anti-terrorist weapon to criminalize illegal immigration – which is only a civil offense. So they began testing the waters by charging migrant workers in isolated cases. They won convictions and appeals. One of those cases was that of Flores-Figueroa, who appealed to the 8th Circuit Court and lost. This success emboldened immigration prosecutors to apply the charge against 300 workers at the May 12, 2008 raid in Postville, Iowa.

The Postville raid and prosecution was a pilot project intended as a model for future massive raids across the country. But it backfired. After acting as an interpreter in the proceedings, I denounced their abuse of process in an essay that prompted a congressional investigation and the uniform condemnation by the American legal community. That is why at the August 25 raid in Laurel, Mississippi, only eight out of 595 workers arrested were criminally charged. However, if the Supreme Court had decided to uphold the charge earlier this month, Postville would now be the norm for the massive criminalization of workers in future immigration enforcement.

The identity theft statute reads: “Knowingly uses the means of identification of another person during and in relation to a felony violation.” The prosecution contended that “knowingly” applies to “uses a means of identification” but does not apply to “of another person”; therefore, such knowledge was not necessary to convict. The Supreme Court unanimously disagreed in a historic 9-0 decision. The Postville scandal had made a difference. It showed how simple semantics and biased interpretation of the law resulted in massive injustice.

Given that my inside account of the Postville prosecutions had cracked the case wide open, I was approached by a team from NYU Law School to help prepare an Amicus Brief to the U.S. Supreme Court in favor of Flores-Figueroa. I told the legal team that, as a linguist, I saw no ambiguity in the statute: “Knowingly” as an adverb of a “transitive verb” must apply to the entire object phrase, “uses the means of ID of another person.” Further, most of the detainees we interviewed did not even know what a social security number was. Many had their papers filled out at the plant because they could not read or write. I described the proceedings as a “lottery of justice”: If the made-up social security number belonged to another person, you were hammered with identity theft; if it was a vacant number, you were saved by sheer luck. These were the same rationales cited in the Supreme Court’s decision.

This decision is hugely significant. The Postville strategy was to threaten these workers with identity theft in order to force them, guilty or not, to plead to lesser charges and accept five months in jail followed by automatic deportation. With our immigration judges overloaded and detention beds full to capacity, migrants were being arrested faster than they could be processed, thereby putting a cap on raids and arrests. Postville’s criminal “fast-tracking” provided a way to circumvent the immigration backlog, giving raids an unlimited green light. The Supreme Court closed that loophole and turned the light to red.

The 9-0 decision overturned three Appeal Courts and thousands of individual cases. It meant that Postville and countless other proceedings were nothing but a big mistake, based on a biased interpretation of the law that put politics and prejudice before justice.