Tuesday, August 26, 2008

Crush of Immigration Prosecutions Coming to Mississippi?

See update below.

As the New York Times and AP report, ICE agents arrested 350 suspected illegal immigrants during a raid at an electrical equipment plant in Laurel, Mississippi, on Monday.

Although the NYT article states that no criminal charges had been filed as of Monday afternoon, such charges appear to be a possibility (especially if the recent mass prosecutions follwing the raid of a kosher meat plant in Postville, Iowa, are any indication). As an ICE statement quoted in the AP story said, "[t]he raid was executed based on 'evidence relating to aggravated identity theft, fraudulent use of Social Security numbers and other crimes, as well as a civil search warrant for individuals illegally in the United States[.]'"

So in the event that any of our readers get enlisted to represent defendants in a Postville Redux, now is as good a time as any to mention the circuit split brewing over the mens rea required for aggravated identity theft under 18 U.S.C. ยง 1028A(a)(1), a statute that featured prominently in the Postville prosecutions. Some circuits have held that the defendant must know that the means of identification belonged to a real person. Other circuits have disagreed, holding that a defendant need only know that he was using a means of identification. As near as I can tell, the Fifth Circuit has not addressed this question. For a thorough discussion of this issue, as well as others involved in identity theft prosections, see this excellent paper by Massachusetts AFPD Martin Richey. (N.B.: The paper is current through June 2008. Since then, two other circuits, the First and Ninth, have joined those holding that the defendant must have known the ID belonged to a real person.) You may also want to check out this cert petition asking the Supreme Court to resolve the matter.

For more about Postville (as a possible template for what may happen in Laurel), see:

  • a letter from an Iowa attorney describing a meeting with prosecutors, probation officers, marshals, and court folk concerning the 7-day exploding plea offers that the Government put on the table
  • the "manual" the Government distributed to defense counsel, consisting of plea colloquy scripts, statutes, sentencing guidelines, and other materials, and
  • an article about, and a paper from, an interpreter involved in the prosecutions who believes that many of the aliens who pleaded guilty did not actually understand what was going on.

8/27/09 UPDATE: According to this joint ICE/DOJ press release, 595 people were arrested at the plant, only 8 of whom are being charged criminally. "The criminal cases are focused on charges of aggravated identity theft."

Links via Bender's Immigration Daily and the Ninth Circuit Blog.



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