MINNEAPOLIS (Workday Minnesota) It’s too late for hundreds of workers in Postville, Iowa, but the U.S. Supreme Court ruled Monday that charges of aggravated identity theft cannot be based on giving a false Social Security numbers to an employer.

The ruling should end the recent Immigration Control and Enforcement strategy of using identity theft charges as a threat to get undocumented workers to agree to immediate deportation.

In the case before the Supreme Court, Ignacio Carlos Flores-Figueroa had been arrested in East Moline, Ill. Flores-Figueroa, an undocumented worker from Mexico, had first used a completely fictitious Social Security number that belonged to no one. Eventually, he bought phony identification that included a Social Security number that belonged to a real person. The case turned on whether he could be charged with the federal crime of aggravated identity theft. This charge carries a mandatory minimum two-year prison sentence.

Flores-Figueroa’s lawyers argued that Congress intended the identity theft law to apply to people who were trying to gain access to victims’ bank accounts or credit cards or otherwise financially harm the victims. Flores-Figueroa, however, used the number only to secure his own employment.

The aggravated identity theft law applies to a person who “knowingly transfers, possesses or uses, without lawful authority, a means of identification of another person.”

The court’s 18-page opinion focused on grammar:
“In ordinary English, where a transitive verb has an object, listeners in most contexts assume that an adverb (such as knowingly) that modifies the transitive verb tells the listener how the subject performed the entire action, including the object as set forth in the sentence,” the court said.

All nine justices agreed on this result, with six joining in the majority opinion, and three filing separate concurring opinions. The bottom line: Aggravated identity theft is committed only if an individual uses a false Social Security number and knows that it belongs to another person (as opposed to being simply a phony number).

Back to Postville: After the immigration raid on a meat-processing plant in Postville on May 12, 2008, some 270 workers were charged with aggravated identity theft, as well as immigration violations. Slightly more than a hundred other workers were also charged with various immigration-related violations, but not with identity theft, because the Social Security numbers they used were phony, and did not belong to any real person.

With a two-year mandatory minimum jail sentence hanging over their heads, most of the 270 agreed to immediate deportation in exchange for dropping the identity theft charges.The aggravated identity theft charge has been a key threat against immigrant workers arrested in ICE’s new strategy of workplace raids.

Marcelo Ballvé of Mother Jones magazine wrote, “The agency reported 5,184 workplace arrests in fiscal 2008, more than seven times the 2004 figure. Its raids have included others on the scale of Postville—sweeps resulting in the dislocation of entire immigrant communities.

“Last October, ICE arrested 330 workers at the Columbia Farms poultry plant in Greenville, South Carolina. That came on the heels of a massive sweep of Howard Industries, an electronics maker in Laurel, Mississippi, where agents netted some 600 workers. The year before, 300 employees were picked up at a Massachusetts leather manufacturer, and raids in late 2006 on Swift meatpacking plants in Nebraska and five other states led to 1,300 arrests.”

When a worker agrees to deportation, the government does not have the burden of proving a case, saving substantial time and expense. For the worker, deportation creates significant legal obstacles to ever legally re-entering the United States.

For the deported Postville workers — and for the thousands of others around the country who agreed to deportation rather than risk two-year jail sentences — the ruling comes too late. For the future, however, the ruling may become one more factor in deterring workplace raids.

Mary Turck is the editor of the Twin Cities Daily Planet, a community news site, and also writes for Latin American News and Views, where this article first appeared.

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