Like I wrote last week, the Supreme Court’s decision in Figueroa-Flores v. United States, No. 08-108, slip op. (May 4, 2009), is great news for immigrants’ advocates. Rather than add to the many news reports that have been published about this case, let’s focus on what this case means for immigration attorneys.
As the opinion explains:
The question is whether the statute requires the Government to show that the defendant knew that the “means of identification” he or she unlawfully transferred, possessed, or used, in fact, belonged to “another person.” We conclude that it does. Figueroa-Flores, slip op. at 1.
Though the decision addresses only the two-year sentencing enhancement provided by 18 U.S.C. § 1028A(a)(1), the Court’s focus on the rules “of ordinary English grammar” to decide this case means that this analysis is ripe for application to other statutes. As the Court rhetorically asked, “Would we apply a statute that makes it unlawful ‘knowingly to possess drugs’ to a person who steals a passenger’s bag without knowing that the bag has drugs inside?” Figueroa-Flores, slip op. at 4.
The Court cited to some explanatory cases and statutes. See, e.g., United States v. X-Citement Video, Inc., 513 U.S. 64, 69 (1994) (interpreting these words of 18 U.S.C. § 2252(a)(1)(A)—“any person who—(1) knowingly transports or ships using any means or facility of interstate or foreign commerce by any means including by computer or mails, any visual depiction, if—(A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct.”); Liparota v. United States, 471 U.S. 419 (1985) (interpreting these words in a statute—“whoever knowingly uses, transfers, acquires, alter, or possesses coupons or authorization cards in any manner not authorized by [law]”).
The underlying point is this: “The manner in which the courts ordinarily interpret criminal statutes is fully consistent with . . . ordinary English usage.” Figueroa-Flores, slip op. at 6. So polish up your grammar and take another close look at every statute you come across.
Statutory Text Trumps Practical Enforcement Issues
The government argued that requiring prosecutors to prove a criminal defendant’s knowledge that a false ID actually belonged to another person would result in far fewer convictions. The Court agreed, but, as it rightly points out, the practical difficulties of enforcing a statute are not sufficient to ignore the statutory requirements. As the Court explained, “had Congress placed conclusive weight upon practical enforcement, the statute would likely not read the way it now reads.” Figueroa-Flores, slip op. at 11. In other words, making prosecution easier isn’t always the goal!
Given that DHS attorneys have been known to urge IJs to rule in their favor because doing otherwise would impose a practical difficulty on the agency, this section of the Court’s opinion could go toward mounting a small opposition.