Resolving a split among the circuit courts, the U.S. Supreme Court yesterday in Flores-Figueroa v. United States significantly limited a tactic used by U.S. Immigrations and Customs Enforcement (ICE) to address the issue of undocumented workers. 

In particular, ICE has used the Identity Theft Penalty Enhancement Act as a way to pressure undocumented workers.  That Act created the crime of “aggravated identity theft,” which occurs when a person “knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person” in connection with the commission of certain enumerated felonies, including immigration violations. Because violation of the Act carries a mandatory two-year jail sentence, ICE had been using the threat of prosecution for aggravated identity theft to convince undocumented workers to plead guilty to other lesser immigration offenses such as the misuse of social security numbers. 

Under the Court’s decision, however, the Act requires the Government to prove that the defendant-worker knew that the means of identification at issue actually belonged to another person, not merely that the worker knew that the means of identification used to obtain employment were fraudulent. This holding makes the threat of prosecution under the Act much less realistic because ICE will have to prove that the individual using the false identification information also knew that the information belonged to a specific individual – as opposed to information relating to an entirely fictitious identity.

Though the Flores-Figueroa decision weakens the threat of aggravated identity theft prosecution as an immigration-enforcement tactic, it is not clear how frequently ICE would have used it under the Obama Administration in any event. Indeed, on April 30, 2009, Janet Napolitano, Director of Homeland Security, issued a Fact Sheet directing ICE to shift its enforcement focus from targeting undocumented workers to targeting the employers who hire them. Specifically, the Fact Sheet says, “[e]ffective immediately, 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.”


These developments should prompt employers, particularly those in industries that tend to attract undocumented workers, to pay particular attention to their hiring practices to ensure compliance with immigration laws.