New Report Looks at Statutes, Cases, and Solutions

A key statutory tool to prosecute identity thieves was significantly weakened by a May 2009 Supreme Court ruling in the case of Flores-Figueroa v. United States. The case held that prosecutors not only must prove that there was an identity-theft victim, but that the defendant knew he had used a real person’s identity information, as opposed to not knowing whether the information was counterfeit or real. The result is to curtail prosecutors’ ability to go after the crime of identity theft, which is disproportionately committed by illegal immigrants.

A new Center for Immigration Studies report explores this issue with an eye toward offering a solution. In ‘Fixing Flores: Assuring Adequate Penalties for Identity Theft and Fraud,’ CIS Director of National Security Studies Janice Kephart does the following:

* Provides a first-time review of 250 aggravated felony identity theft cases within the past three years that used the statute in question.

* Reviews legislative history of both Sections 1028 and 1028A of the U.S Criminal Code.

* Analyzes the Circuit Court and Supreme Court cases that led to the current interpretation of Section 1028A.

* Proposes minor but important changes in the statutory language for Sections 1028 and 1028A.

As biometric immigration-control programs become more widespread in the United States (including E-Verify, US-Visit, REAL ID, and the Western Hemisphere Travel Initiative), the fake identities illegal aliens and criminals have traditionally used will no longer pass muster – they will increasingly have to use a real person’s identity information to be “verified” under these initiatives, rather than just making up numbers and other information. Add in possible amnesty for 11 million illegal aliens, and issues of identity theft, vetting, verification, and assurance become of increasing concern. Being hamstrung by a Supreme Court interpretation of a criminal statute that enables perpetrators to hide behind a cloak of deniability about their crime will inevitably lead to increased attempts at identity theft. Congress needs to provide a fix, and quick.

The above is a press release received Jan. 19 from from Center for Immigration Studies. 1522 K St. NW, Suite 820, Washington, DC 20005, (202) 466-8185 fax: (202) 466-8076. Email: center@cis.org. Contact: Janice Kephart, 202-466-8185, jlk@cis.org

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