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Justices May Take Immigration Cases

By Jerry Markon
Washington Post Staff Writer
Sunday, October 19, 2008

As hundreds of immigration agents raided a kosher meatpacking plant in rural Iowa in May, prosecutors summoned defense lawyers to the federal courthouse in Cedar Rapids.

Their message was blunt: The illegal immigrants arrested must plead guilty to lesser counts or face indictment on charges of aggravated identity theft and possible mandatory two-year prison terms.

"It was a hammer over everyone's head," said Dan Vondra, a lawyer who represented several of the 302 immigrants who quickly took the deal. "For these people, two years in federal prison was unbearable."

The raid highlighted the Bush administration's increasing use of the tough new charge in its crackdown on illegal immigrants at work sites, part of the escalating campaign against undocumented immigrants nationwide. But the tactic is under attack from critics, and federal appellate courts are divided over the government's burden of proof in aggravated identity theft cases, a dispute that reached the Supreme Court on Friday.

The justices debated whether to take two cases that could determine whether prosecutors can continue to bring the charge in federal courts, where immigration prosecutions are at record levels. The court could announce its decision as soon as tomorrow.

At issue is whether prosecutors must prove that defendants knew that fraudulent Social Security numbers or other documents they used belonged to a real person as opposed to being fabricated. The Justice Department argues that prosecutors do not have to prove knowledge, and three appellate courts have rendered decisions backing that position. Three others, however, have ruled otherwise.

An adverse Supreme Court ruling likely would not affect the government's ability to charge aggravation in non-immigration identity theft cases. A criminal who, for example, steals someone's Social Security number and empties his or her bank account clearly knows he is victimizing a real person.

But experts said a loss for the Justice Department would devastate its ability to bring aggravated identity theft cases against immigrants because most of them do not know whether their fake IDs belong to someone else.

"It would effectively gut a provision clearly designed to crack down on immigration-related identity theft," said Dan Stein, president of Federation for American Immigration Reform, which favors tough immigration enforcement.

Critics of the administration's approach say that the charge is not needed and that deporting illegal immigrants should be enough. "They're just piling on," said Jeanne Butterfield, executive director of the American Immigration Lawyers Association.

But federal officials say the charge is a key part of their arsenal because its penalties are substantially tougher than those of other immigration counts. Officials point out that terrorists use false identities, a sensitive issue since the Sept. 11, 2001, attacks. "Post 9/11, we also recognize that identity theft poses a security risk to all of us," Deborah J. Rhodes, senior associate deputy attorney general, said in July at a congressional hearing on the Iowa raid on an Agriprocessors plant in Postville. The raid was the largest criminal work-site enforcement operation in U.S. history.

U.S. Immigration and Customs Enforcement, which led the raid, declined to comment on the pending Supreme Court cases. Pat A. Reilly, an ICE spokeswoman, said the agency "is going to seek the highest-level charges it can get on anyone it encounters in a work-site operation or any other kind of illegal activity."

Congress created the aggravated identity theft charge as part of a 2004 law targeting identity theft broadly. The felony charge is defined as knowingly transferring, possessing or using "without lawful authority, a means of identification of another person."

The cases the court is considering, also in Iowa, involve Mexican immigrants -- Ignacio Flores-Figueroa and Nicasio Mendoza-Gonzalez -- who used false identification to get jobs at a steel plant and a pork-processing plant. Both said the government failed to prove that they knew the fraudulent documents belonged to real people. Federal judges ruled that the government did not have to prove that, and both were convicted of aggravated identity theft.

The U.S. Court of Appeals for the 8th Circuit upheld both convictions, prompting the Supreme Court review. It is unclear which of the cases the court may take.

"Someone who intends to steal another's identity is worthy of greater punishment than one who unintentionally picks an identification number out of thin air that happens to match one already issued to someone else," attorneys for Flores-Figueroa argued.

The Justice Department's solicitor general's office contends that the convictions should be upheld but is asking the court to take up the matter because "there is now a clear and entrenched conflict among the courts of appeals."

Prosecutors also defend their actions in the Postville raid, in which 389 illegal immigrants were detained. About two-thirds of them were initially charged by criminal complaint with aggravated identity theft, but those charges were dropped. Most of the 302 immigrants who pleaded guilty to lesser felony immigration charges were sentenced to five months in prison.

"We had evidence that supported the more severe charge," said Bob Teig, a spokesman for the U.S. Attorney's office in Cedar Rapids. "I suppose it depends on what side you're on whether that's a carrot or a stick.''

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