Illegal Workers in Agriprocessors Postville, Iowa, Raid Would Not Be Guilty Under Recent Supreme Court Ruling in Flores-Figuera

In May 2008 ICE executed its largest worksite action ever in Postville, Iowa against Agriprocessors.  ICE led 16 state and federal agencies in executing the warrants.  Over 300 illegal workers were arrested for identity fraud, served 5 months and were deported.

The Agriprocessor owner’s trial gets started this week.  He faces bank fraud charges that were uncovered after and as a result of the worksite action. The owner faces a total 163 charges and, if convicted, a maximum prison sentence of 1,995 years.

However, under a May 2009 United States Supreme Court ruling ICE can no longer pressure unauthorized workers with identity theft unless they know that the identity actually belongs to a specific person.

In Flores-Figueroa v. United States the United States Supreme Court held that a person cannot be convicted of aggravated identity theft (AIT) unless the government proves beyond a reasonable doubt that defendant knew that the documentation number that he used actually belonged to another person.  The ruling puts an end to the ICE’s prevalent use of the aggravated identity theft statute [18 U.S.C. § 1028(a)(1)] in immigration cases to prosecute aliens who buy false IDs, not knowing whether or not the particular social security number used on the false ID is one belonging to an actual person or is simply a randomly chosen number.

The ruling directly limits the scope of ICE’s worksite enforcement authority. ICE has generally used the threat of prosecution under the federal aggravated identity theft statute and the mandatory prison time of 2 years imposed by the statute to obtain plea agreements to lesser charges from unauthorized workers, as well as waivers of their rights to contest their deportation.

By limiting the use of the aggravated identity theft statute to situations where the defendant actually knows that he is using a Social Security number or other means of identification that belongs to a real person, the Supreme Court’s decision provides undocumented workers with an important tool in contesting their arrests in enforcement efforts.

DHS/ICE enforcement of I-9 and employer sanctions laws now targets employers through on-site investigations and administrative or "desktop" audits. 

Employer failure to verify employment eligibility and properly complete and retain I-9 Forms subjects the company to stiff criminal and civil liabilities, including imprisonment, asset forfeiture, and treble damages in RICO (Racketeer Influenced and Corrupt Organization) lawsuits by competitors. Executives, officers, managers, supervisors and key employees, as well as accountants are personally liable for civil and criminal penalties for I-9 related errors and unlawful employment eligibility verification (EEV) practices.

I-9 compliance (and E-verify for registered employers, now including FAR federal contractors) require that employers verify all workers’ employment eligibility, or work authorization. Persons not authorized for employment, whether documented foreign nationals (or "illegal immigrants") generally do not have work authorization. The I-9 laws and the employment eligibility verification process restrict employment of illegal or undocumented immigrants and employment of persons who are not "employment authorized".

Employer liability extends to circumstantial evidence and “constructive knowledge”.
  It is unlawful to knowingly hire or continue to employ unauthorized workers. This I-9 process mandates accurate and timely completion of the Form I-9 by all U.S. employers and their employees.

"Knowingly hire" includes "constructive knowledge". The requisite employer's knowledge may be constructive knowledge when it may be fairly inferred through notice of certain facts which through exercise of reasonable care would lead a person to know about; or the employer deliberately fails to investigate such facts.

Employer constructive knowledge extends to its subcontractors' and independent contractors' I-9 compliance.

Goulder Immigration Law Firm assists employers with Form I-9 consulting, including I-9 and employer sanctions compliance training, developing a company I-9 and employer sanctions compliance manual, and employment eligibility compliance auditing services.  Written I-9 compliance policies and a Form I-9 and employer sanctions law internal audit will help protect employers from government fines and criminal penalties and help ensure that all I-9 Forms comply with I-9 and employer sanctions laws. 

Gerald Goulder is a North Carolina immigration lawyer who practices exclusively immigration law for North Carolina clients and for clients throughout the United States, and the world.  Immigration law is a federal law practice not limited attorneys in a particular state.