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The Supreme Court is considering whether illegal aliens who have used fake Social Security numbers can escape federal aggravated identity theft charges – including a mandatory two-year sentence – by simply claiming they never knew the identity belonged to a real person.
In 2000, illegal alien Ignacio Carlos Flores-Figueroa of Mexico used a bogus Social Security number and resident alien card to get a job with a steel company in East Moline, Ill. He worked under a false identity for six years and then decided to begin using his real name and another fraudulent Social Security number.
His employer notified U.S. Immigration and Customs Enforcement, and authorities found Flores-Figueroa’s aliases belonged to U.S. citizens.
The illegal alien was indicted by a federal grand jury in 2006, and he pleaded guilty to two counts of misuse of immigration documents and one count of illegal entry into the United States.
However, he refused to plead guilty to aggravated identity theft under 18 U.S.C. § 1028A – a federal statute that mandates a two-year prison term for anyone who “knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person.”
The U.S. District Court for the Southern District of Iowa convicted Flores-Figueroa of two counts of aggravated identity theft, and sentenced him to a prison term of 51 months for the misuse of immigration documents and entry without inspection offenses and a consecutive 24-month prison term for aggravated identity theft.
Flores-Figueroa claims he is not at fault because he “had no intention of stealing anyone’s identity” when he purchased numbers from a person in Chicago who sells sham IDs.
So, with Kevin Russell of Howe & Russell representing him, the illegal alien took his case to the Supreme Court.
On Wednesday, in Flores-Figueroa v. United States, the court will hear arguments on whether an illegal alien who fraudulently uses identification can be charged under the statute without proof that he knew the ID was stolen.
An estimated 8 million U.S. citizens become victims of identity theft every year. The case could protect illegal aliens from prosecution if the Supreme Court rules they cannot be charged under the federal statute unless prosecutors can prove they knew their fraudulent IDs belonged to American citizens.
Acting Solicitor General Edwin Kneedler wrote in the brief that the federal statute is meant to “provide enhanced protection” for victims of identity theft.
“The harm the victim suffers when her identity is so misused bears no necessary relationship to the perpetrator’s awareness of her existence,” he wrote.
Los Angeles attorney Stephen Masterson supported Kneedler’s position, stating that the question of whether an illegal alien knows he is stealing an existing identity is irrelevant because “the havoc wrecked on the victim’s life is the same either way.”
But Flores-Figueroa and at least 20 illegal alien activist groups, defense lawyers and privacy experts are claiming the federal statute only applies to identity thieves who use stolen information to empty bank accounts and incur bills in other people’s names – not illegals who use American identities to find work.
The government has applied the statute to aliens caught using phony identification during immigration raids. Illegals are often given the opportunity to plead guilty to lesser immigration charges and submit to immediate deportation rather than face prosecution as identity thieves.
Chuck Roth, litigation director for the National Immigrant Justice Center in Chicago, accused the government of using the federal statute as “a bludgeon” to coerce illegals into pleading guilty to lesser charges and agreeing to leave the country.
Flores-Figueroa’s lawyers told the Associated Press, “When a person makes up a Social Security number, having no idea whether it belongs to someone else, it is hard to see how that conduct qualifies as ‘theft’ much less ‘aggravated theft.'”