Does Decision In Flores-Figueroa Presage A Shift Of Immigration Enforcement From Illegal Workers To Employers?

Monday, June 1, 2009 - 00:00

Editor: The Flores-Figueroa decision got a lot of publicity in the Times and in the Journal. The issue, as stated by Justice Breyer in writing for the unanimous Court, was straight forward:

federal criminal statute forbidding "[a]ggravated identity theft" imposes a mandatory consecutive 2-year prison term upon individuals convicted of certain other crimes if, during (or in relation to) the commission of those other crimes, the offender "knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person." 18 U. S. C. §1028A(a)(1) (emphasis added). The question is whether the statute requires the Government to show that the defendant knew that the "means of identification" he or she unlawfully transferred, possessed, or used, in fact, belonged to "another person."

We conclude that it does.

Do you think it's much ado about nothing?

Patrick: In some respects you've got a point. It's interesting that there was a disagreement among the circuits as to whether something that appeared so obvious to nine Supreme Court justices really was so confusing, and that is whether to read the statutory language, as Justice Breyer put it, as it was clearly meant to be read, or whether to read it differently, which is how the United States government was urging the Supreme Court to read it and which the United States government had successfully persuaded a number of circuit courts to read it. But underneath it all, it's not just the reading of the language in the statute, and I think the Supreme Court got it right on with their decision - underneath it all is the consequence, which is putting a stop to a practice that was begun in the Bush administration and had continued, albeit for a bit, in the Obama administration. Secretary Napolitano stopped it, and that was the practice of going out aggressively as law enforcement agents through Immigration Customs Enforcement (ICE) and making the illegal worker the primary target of the effort. In contrast, DHS announced on April 30 of this year that "ICE will focus its resources in the worksite enforcement program on the criminal prosecution of employers who knowingly hire illegal workers in order to target the root cause of illegal immigration." In fact, the only reference to arrests of "illegal workers" in the April 30 announcement was that ICE would arrest those "who are found in the course of these worksite enforcement actions in a manner consistent with immigration law and DHS priorities."

In short, what the Obama administration is saying here is that, while not condoning unauthorized employment, the new focus will be on employers who knowingly employ people who are not authorized to work and in some cases do so in an abusive manner.

So I do think you're right that the linguistics component of the Flores- Figueroa decision is much ado about nothing, but the focus it brought to the enforcement effort was significant.

Editor: So you would take this as significant because it deals with the aggravation of other crimes?

Patrick: No, I think it's significant because the unfettered assault that the enforcement efforts were bringing on these workers was something that managed to offend an awful lot of people, including a number of newspapers who editorialized against it and a number of Americans who felt that, okay, someone might be working without authorization, but to put him or her into a situation where they face a mandatory two-year prison term for aggravated identity theft in a situation where they have used a social security number and perhaps don't realize they have used an active social security number - they're just using it to get a job - to use that to punish that person so severely offended a lot of people.

Editor: The administration is saying, okay, we're going to focus on the employer, but Flores-Figueroa still goes to jail, he just doesn't get the aggravation, the extra two-year term.

Patrick: That is correct. The aggravated identity theft is a mandatory two-year sentence, although it did throw into question whether a number of people who had been convicted under this statute should have their convictions reconsidered. I don't think anyone is questioning the inappropriateness and criminal behavior of the individual who uses false documents to secure work knowing they are not authorized to work, knowing the documents are false - I don't think that's the issue. The issue here was the government wanting to pile on as much as it could in an effort to deter people from conducting themselves this way. But the statute had a knowing element to it, which many of us thought was very evident, and still some circuit courts agreed with the government that no, it's not so evident - the person didn't need to know that the social security number belonged to a real person, and other courts said that yes, they did. The Supreme Court settled it nine to nothing.

Editor: Correctly so, but I would read this decision more as policy with the Court saying let's go back to first principles of statutory construction and interpretation. Your comment is very helpful in putting this into context for our readers. Thank you very much.

Patrick: I would add that after my comments were published in the last issue of your paper, it's been clear that much of what we talked about has been discussed and reinforced by people testifying before Congress. Greenspan expressed the same view I did that the economic benefits of bringing talented, bright, creative people to the United States is unequivocal, and that America should be encouraging that, and then Secretary Napolitano of Homeland Security testified that we need to have not just a strong enforcement strategy but also an examination of our visa system and put into place something that makes more sense. This all happened since the last interview was published, so I like to think we're on the right path.

Please email the interviewee at mpatrick@fragomen.com with questions about this interview.