At the Federal level you can't be charged with identity theft for using a bogus Social Security Number unless you knew it was a real persons number and tried to steal the real persons identity.

I wonder how this applys in Arizona because we have an Arizona law that is pretty much the same.

Source

Court rules for illegal immigrant in identity theft case

May. 4, 2009 01:35 PM

Associated Press

WASHINGTON - A unanimous Supreme Court said Monday that undocumented workers who use phony IDs can't be considered identity thieves without proof they knew they were stealing real people's Social Security and other numbers.

The court's decision limits federal authorities' use of a 2004 law, intended to get tough on identity thieves, against immigrants who are picked up in workplace raids and found to be using false Social Security and alien registration numbers.

Advocates for immigrants had complained that federal authorities used the threat of prosecution on the identity theft charge, which carries a two-year mandatory prison term, to win guilty pleas on lesser charges and acceptance of prompt deportation.

"These prosecutions have been taken off the table," said Nina Perales, southwest regional counsel for the Mexican American Legal Defense and Education Fund.

The court, in an opinion by Justice Stephen Breyer, rejected the government's argument that prosecutors need only show that the identification numbers belong to someone else, regardless of whether the defendant knew it.

Breyer said intent is often easy to prove in what he called classic identity theft. "Where a defendant has used another person's information to get access to that person's bank account, the government can prove knowledge with little difficulty," Breyer said.

But immigrants without proper documentation need identity documents and often buy them from forgers, never knowing if they belong to anyone.

Such was the case with the undocumented worker on the winning side Monday. Ignacio Carlos Flores-Figueroa, a Mexican immigrant employed at a steel plant in East Moline, Ill., traveled to Chicago and bought numbers from someone who trades in counterfeit IDs.

Unlike earlier fictitious numbers Flores-Figueroa used, these numbers belonged to real people.

Flores-Figueroa had worked at the plant under a false name for six years. His decision to use his real name and exchange one set of phony numbers for another aroused his employer's suspicions.

He was arrested in 2006 and convicted on false document and identity theft charges.

He appealed his conviction as an identity thief, but the 8th U.S. Circuit Court of Appeals in St. Louis upheld the conviction. With appeals courts divided on the issue, the Supreme Court stepped into the case.

The Bush administration used the identity theft law hundreds of times last year. Workers accused of immigration violations found themselves facing the more serious identity theft charge as well, without any indication they knew their counterfeit Social Security and other identification numbers belonged to actual people and were not made up.

After last year's raid on a kosher slaughterhouse in Postville, Iowa, authorities charged 270 undocumented workers with identity theft. They all accepted plea deals in which they also agreed not to contest deportation.

But illustrating the arbitrary nature of the law - which several justices commented on during arguments in February - an additional 100 workers arrested in the same raid faced less serious charges because their identification numbers were made up.

The Obama administration has shifted the main focus of immigration raids to employers.

The case is Flores-Figueroa v. U.S., 08-108.

Supreme's decision won't change racist Arizona law

ID-theft ruling is unlikely to affect Arizona

by Michael Kiefer and Daniel Gonzalez - May. 5, 2009 12:00 AM

The Arizona Republic

A U.S. Supreme Court ruling Monday that overturned the identity-theft conviction of an undocumented worker appears unlikely to affect Arizona identity-theft law, a major tool in the state's illegal-immigrant enforcement.

The high court ruled that an Illinois steel-plant worker did not violate a federal identity-theft law because he did not know that the identification numbers he had assumed belonged to other people.

Arizona law, however, differs from federal law. "Arizona statutes make it illegal to steal an identity whether the identity stolen was real or fictitious," Maricopa County Attorney Andrew Thomas said.

The federal case, though, may raise questions about the state law.

"I have no doubt there will be challenges here in Arizona, and our office is prepared to defend the law," he said, acknowledging that a ruling against Arizona's laws "would have a substantial effect on this office's ability to fight illegal immigration."

When the most recent Arizona identity-theft laws were passed in 2005, they specifically mentioned those who use the identity of a "real or fictitious person, with the intent to seek employment."

The Arizona Attorney General's Office is reviewing the ruling to determine "what, if any" impact it may have on state law, spokeswoman Anne Hilby said.

The Supreme Court's unanimous decision focused on the wording of a federal statute. The statute specifically refers to an offender who "knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person." Because prosecutors did not prove that the steel-plant worker, a Mexican citizen living illegally in the U.S., knowingly used the identity of another, the court reasoned he was not guilty of the offense.

When identity-theft laws first were written in the 1990s, they targeted people who took identities of others in order to commit financial fraud. But increasingly, identity-theft laws have become tools to prosecute illegal immigrants, who, to get jobs, often buy fake documents with Social Security and other identification numbers that usually are fictitious but sometimes belong to real people.

Advocates for immigrants have complained that federal authorities use the threat of prosecution on the identity-theft charge, which carries a two-year mandatory prison term, to win guilty pleas on lesser charges and acceptance of prompt deportation.

"These prosecutions have been taken off the table," Nina Perales, Southwest regional counsel for the Mexican American Legal Defense and Education Fund, said after the court's decision.

In Maricopa County, identity-theft laws also have become a primary tool when conducting worksite raids.

Attention on those raids has centered on the state's 16-month-old employer-sanctions law, which allows officials to suspend or revoke business licenses of employers who knowingly hire illegal workers. The law requires employers to use a computer database to ensure that new hires are authorized to work, rather than just accepting documents at face value as in the past.

Most of those investigations began as raids on workers suspected of ID theft through the use of false documents, according to the Maricopa County Attorney's Office. Since January 2008, the county Sheriff's Office has raided 14 businesses around the Valley and detained or arrested more than 200 people on suspicion of identify theft or fraud.

The county attorney was not alone in his assessment that the Supreme Court's decision is unlikely to affect Arizona.

"I think he's probably right," said Robert McWhirter, a defense attorney who has written several books on immigration law and handles identity-theft and illegal-immigrant crime cases. "The federal case is very focused on the wording of the federal statute," he said.

Dan Pochoda, legal director of the American Civil Liberties Union of Arizona, said the ruling does not appear to invalidate state law. The ACLU and other organizations have unsuccessfully waged a court battle to have the state's employer-sanctions law thrown out, arguing that it usurps federal immigration laws.

Pochoda said the Supreme Court ruling likely will affect federal Immigration and Customs Enforcement operations in Arizona by limiting agents from charging illegal immigrants with identity theft under the federal law. ICE agents have led few worksite raids in Arizona.

Vincent Picard, a spokesman for ICE, declined to comment on the ruling.

Pochoda said the ACLU plans to take a closer look at the Supreme Court ruling to see if it at least opens the door for a legal challenge to Arizona's identify-theft laws, though he admitted he is not optimistic. "The (Supreme Court) ruling seems pretty specific," he said.

Republic reporter JJ Hensley and the Associated Press contributed to this article.