For years, the chief punishment for immigrants caught working illegally in the United States has been deportation. But prosecutors are now bringing criminal charges that include aggravated identity theft, which can bring a hefty prison sentence. Immigrant rights groups and some members of Congress are challenging the practice.
A congressional panel is meeting Thursday to look at the controversial fallout from an immigration raid on an Iowa meat-packing plant in May. Not long ago, illegal immigrants swept up in such raids faced administrative charges and swift deportation. But in recent years, the Bush administration has started bringing criminal charges against immigrants who use fake documents, including stolen Social Security numbers.
After the raid at the Agriprocessors plant in Postville, Iowa, more than 250 workers were sentenced to five months in prison. Rights groups, defense lawyers and even some judges are questioning the Bush administration's strategy.
Iowa immigration attorney Dan Vondra says he was stunned to see immigrant workers from the plant charged with aggravated identity theft. Congress created that law in 2004 to toughen penalties for the growing problem of identity theft.
Still, Vondra said, "When you think of identity theft, what you really want to target is somebody getting credit cards in your name, ruining your credit, using your name to commit crimes, things of that nature."
The immigrants had bought stolen Social Security numbers to help them find work, Vondra said. In fact, one of the translators at the court proceedings has said the mainly Guatemalan immigrants he encountered had no idea what a Social Security card was — let alone that the numbers on it belonged to real people.
Challenges In The Courts
Last year, another Iowa attorney used that argument in court. Gary Koos' client had been arrested at a concrete company after buying an ID off the street in order to fill out employment forms. Koos didn't think that fit the crime of aggravated identity theft.
"If you want to think of it in legal terms, it would be that a person has to be put upon notice of what the crime is," Koos said. "And in this case, it's knowingly to use someone else's identity. My client didn't know he had someone else's Social Security number, he just had a number."
Koos lost the case on appeal, and his immigrant client is now serving five years in federal prison. But Koos' argument has been backed by other appeals courts — and he thinks the Supreme Court may need to resolve the dispute.
The issue is coming up more often because of another part of the Bush administration's immigration crackdown. More and more companies are using a federal computer program that can detect fake Social Security numbers. But it can't tell when real numbers are used by another person — which has fueled a growing market for stolen IDs.
"The issue is whether people using false identifications should be held accountable for that," said Bob Teig, a spokesman for the U.S. Attorney's office in northern Iowa, which prosecuted the Agriprocessors case.
Teig said he didn't know whether any of the workers charged with aggravated ID theft had used Social Security numbers for anything but work. But that's not the point, he said.
"The point is, by the time it happens it's too late. The statute is not just designed to punish, the statute is designed to prevent," Teig said.
A Stiff Mandatory Sentence
To be clear, the Agriprocessors employees did not plead guilty to aggravated ID theft. But because the charge carries a two-year prison sentence as its mandatory minimum, it put pressure on them to accept a plea deal on lesser charges.
Rep. Zoe Lofgren (D-CA) has called for a hearing to look at that procedure. She's also an immigration attorney, and she questions whether due process was upheld.
"Hundreds of people were convinced to plead guilty to a crime without really an adequate opportunity to see if they had any remedy under immigration law," Lofgren said. "And of course, now that they've pled guilty to a crime, they have no remedies that they might otherwise have had."
Not all arrested immigrant workers are being sentenced to jail time. But federal immigration officials say incarceration can be an important deterrent. And Julie Myers, head of Immigration and Customs Enforcement, says that some victims of this kind of ID theft suffer financial and legal hardships.
"We think it's tragic and unfortunate when people break the law by coming here," Myers said, "and then break the law again by actually stealing the identity of U.S. citizens."
So far this year, the immigration agency has made more than 900 criminal arrests.