Justices Strike Down Postville Tactic

By Nathaniel Popper

Published May 06, 2009, issue of May 15, 2009.

The U.S. Supreme Court has unanimously struck down a legal tool that was central to the prosecution of immigrant workers who were arrested at the Agriprocessors slaughterhouse in Iowa last May.

After the raid at the kosher plant, nearly 300 illegal workers were charged with aggravated identity theft, which came with a minimum two-year prison sentence. Lawyers who defended the workers say the charge was used as a threat to push the workers to plead guilty to a lesser charge of using false Social Security numbers, which carried a five-month prison sentence.

“It was a very effective threat — that unless you take the lower-level plea, we’ll hit you with this higher prison time,” said Karen Tumlin, a staff attorney at the National Immigration Law Center in Los Angeles.

On May 4, all nine Supreme Court justices agreed that the government had been improperly using the charge of aggravated identity theft. Prosecutors had lodged the charge in cases in which an illegal immigrant used a Social Security number that belonged to a real person. The justices said that to use the charge, the government must be able to prove that the defendant knew that the number was assigned to someone else.

In order to secure work, many undocumented immigrants buy cards with fake Social Security numbers — some of which belong to real persons and others that do not. In the case the justices considered, a Mexican immigrant, Ignacio Flores-Figueroa, initially secured work with a Social Security number that did not match that of a real person — and he was not prosecuted. But when he later presented another number that did match up with a real person’s, he was arrested and sent to jail. In a concurring opinion, Justice Samuel Alito said the fate of arrested immigrants was left to chance.

“If it turns out that the number belongs to a real person, two years will be added to the defendant’s sentence, but if the defendant is lucky and the number does not belong to another person, the statute is not violated,” Alito wrote.

The chance that Alito referred to came into play for workers arrested at Agriprocessors’ Postville, Iowa, plant. Dozens of workers who had bought cards with Social Security numbers that did not belong to real people were deported without going to prison.

The prosecution of the Agriprocessors’ workers is widely seen as one of the most draconian implementations of immigration law in recent history. It was one of the few times that mass numbers of immigrant workers were imprisoned rather than simply deported.

In the end, the nearly 300 Agriprocessors workers who received prison sentences were sent to jail on a lesser charge of using false Social Security numbers. But lawyers say that workers took the plea bargain, with its five-month sentence, because they were threatened with the more serious charge of aggravated identity theft.

“They used that as a mechanism to pressure people into taking the plea agreements,” said Christopher Clausen, who represented a number of the workers who took plea agreements.

Immigration lawyers said that before the Postville raid, the charge of aggravated identity theft had been used in isolated cases, and that the Postville case served as a wake-up call.

“We hadn’t seen this law used in that large scale manner at all — and that coercively — until then,” said Tumlin.

The Supreme Court decided to take up the issue five months after the Postville raid, though the justices do not mention the raid in their decision. Because most of the Agriprocessors workers have served their sentences and have been deported, the court’s decision would likely have little effect on them.

Contact Nathaniel Popper at popper@forward.com.



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