Supreme Court Rejects DOJ Interpretation of Identity Theft Law

by Dave Bennion · 2009-05-04 20:38:00 UTC
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ICE's strategy under the Bush administration of pushing immigration enforcement to a ridiculous extreme suffered a major setback today in the case of Flores-Figueroa v. United States. A unanimous Supreme Court rejected the government's harsh use of aggravated identity theft laws to criminally prosecute immigrants.  The Court held that, when prosecuting someone under the statute, the government must prove that a defendant knew that a social security number belonged to another person.

Justice Breyer authored the grammar lesson opinion in which he rejected the government's efforts to analogize the use of a false social security number in order to gain employment with dumpster diving or computer hacking for credit card numbers.  There is a big difference between running up a huge bill on a stolen credit card and choosing nine numbers at random for the privilege of working long hours for low pay.  The Court saw this even if the DOJ couldn't.

This must be seen as a refutation of the legal theory behind the Postville prosecutions which have tainted AUSA Stephanie Rose's otherwise promising candidacy for U.S. Attorney for the Northern District of Iowa.

Kevin Johnson sees the case as part of a trend:

Wins for noncitizens in this case and Negusie v. Mukesey in March and Nken v. Holder in April which is not bad given the conservative Supreme Court.  It does suggest that the Bush administration took some extreme positions on immigration-related matters that even this Court could not swallow.

Greg Siskind weighs in:

I don't think identity theft prosecutions are going to end. In fact, one of the consequences of the expansion of E-Verify and the eventual publication of a social security no-match rule is that there will be MORE pressure to engage in identity theft. If workers find that merely providing a bogus social security number and a bogus identification document are not enough to get through the verification system, then it is more likely the worker will try and get a name and a number that actually match and assume that identity. E-Verify and the no-match rule won't necessarily catch these kinds of cases.

If the government plans to continue to use identity theft prosecutions as a tool of immigration enforcement, prosecutors will have to build better cases than they did during the Postville debacle.

[Image: child of Postville worker]

Dave Bennion
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