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IMMIGRATION

SUPREME COURT REJECTS GOVERNMENT ATTEMPT TO CRIMINALIZE IMMIGRANT WORKER


Gail S. Seeram
By GAIL S. SEERAM, ATTORNEY-AT-LAW

In a unanimous decision (9-0) issued on May 4, 2009, the U.S. Supreme Court, rejected the government's efforts to overreach in prosecutions of immigrant workers. The court held that to convict a defendant of aggravated identity theft, which carries a mandatory minimum sentence of two years in prison, the government must establish that the person knew the identification belonged to another person.

The court agreed that the defendant could be imprisoned for using an ID card he knew was false, but it also said he could not be charged with a felony of "aggravated identity theft" because he did not know he was using someone's Social Security number.

In the case before the court, a worker, Ignacio Flores-Figueroa, had given his employer counterfeit Social Security and alien registration cards to continue working. The government charged Flores with misusing immigration documents, but also elevated the charges by including a charge of aggravated identity theft.

The government argued that to convict on that charge, it did not have to prove that Flores knew the number actually belonged to another person. The court disagreed. It rejected the government's claim that it would be too hard to prove a defendant knew the identification belonged to someone else. Significantly, the court said that when the government properly charges defendants with this crime, the government should have no difficulty proving "knowledge."

The government charged more than 300 workers in Postville, Iowa, in 2008 with violating this statute. Because of the threat of serving two years in prison, almost all of the Postville defendants pled guilty to lesser charges in expedited hearings that led to widespread condemnation.

The U.S. Supreme Court sent a clear message to U.S. Department of Homeland Security that they cannot try to misuse a criminal statute intended to combat real identity theft to place unauthorized workers into removal proceedings when the unauthorized worker had no "knowledge" the Social Security number belonged to another.

Gail S. Seeram, an immigration attorney, handles cases involving family petitions, business/investors visas, citizenship, deportation, asylum, work authorization and extension of status. Call her office toll- free at 1-877-GAIL-LAW (1-877-424-5529), send an email at gail@go2lawyer.com or visit www.go2lawyer.com



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