Immigration and identity theft debate lands in courts

By Ann McGlynn

Quad-City Times - Iowa

August 3, 2008

Federal agents busted Ignacio Flores-Figueroa at a Davenport house in January 2007.

The illegal immigrant from Mexico worked at L&M Steel in East Moline. He gave his employer fake identifications and Social Security numbers to do so.

He pleaded guilty in U.S. District Court, Davenport, to having those fake documents, as well as illegally entering the country. He went to trial on a fourth charge: aggravated identity theft.

Why?

He didn’t know his documents were those of a real person, his attorney, Gary Koos said. Many times, fake documents are just that — fake. The numbers belong to no one.

“He just wanted to get a card to get a job,” Koos said.

Flores-Figueroa was convicted. He got an extra two years in prison for the identity theft, for a total of 6¼ years.

The attorneys for Flores-Figueroa, which include the Stanford Law School Supreme Court Litigation Clinic, are asking the U.S. Supreme Court hear his case. The charge is at the center of a legal debate about illegal immigrants and identity theft.

The debate is over the word “knowingly.” The law states the person commits the crime when he or she “knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person ...”

Federal courts across the country are divided on the issue. Some say the government must prove a person must know the numbers belong to a real person. Others, including the Eighth Circuit — of which Iowa is a part — say that prosecutors do not have to prove knowledge of a real person, just of transferring, possession or use.

Ultimately, the difference in opinion results in different sentences in different areas for the same crime.

Kevin Russell, an attorney for Flores-Figueroa, said prosecutors are increasingly using the identity theft charge “against undocumented workers who have no intention of stealing anyone’s identity.”

He continued: “We think that this is a misuse of the statute, which was intended to punish defendants who go out with the intention of taking on some other real person’s identity, usually in order to steal money from them or to misuse their credit. And because the courts are divided about whether this is a proper use of the statute, we are hopeful that the Supreme Court will grant review in our case in order to bring some much needed clarity to the law.”

The Eighth Circuit Court of Appeals made its first ruling in the debate in March on another Iowa case. It decided, similarly to the Fourth and Eleventh circuits, that the government does not have to prove the defendant knows the Social Security number or other identifier belongs to a real person.

Nicasio Mendoza-Gonzalez was one of the people arrested in the immigration raid at the Swift & Co. pork processing plant in Marshalltown, Iowa, in December 2006. Among other charges, Mendoza-Gonzalez was accused of aggravated identity theft for using fake documents to get his job at Swift.

His fake documentation belonged to real person, Dinicio Gurrola III. Gurrola’s wallet was stolen, and he had to replace his driver’s license, his Social Security card, cash and cell phone.

Mendoza-Gonzalez was sentenced to 2½ years, two of which were for the identity theft charge. His attorneys also asked for review by the U.S. Supreme Court.

Another Iowa case, the raid at the kosher plant in Postville, Iowa, illustrates the issue, as well. Several of the almost 400 people detained were charged with aggravated identity theft. They generally faced harsher punishments than those whose fake documentation did not belong to a real person, records show.

“It’s just luck of the draw,” Koos said.

qctimes.com