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Dumbest Legal Question Of The Year

By Greg L | 21 October 2008 | Illegal Aliens, Crime | 32 Comments

This has got to be one of the dumbest the Supreme Court has ever agreed to hear.

An illegal alien from Mexico is working in a steel mill in Illinois since 2000.  He’s using an assumed name, a fake Social Security Number, and a fake green card.  Six years later, the guy decides he wants to use his real name, spills the beans about the assumed name to his employer, and submits new identification information.  The new identification information under his real name includes someone else’s Social Security Number and yet another person’s green card number.  The employer is awfully suspicious, contacts authorities, and ICE picks the guy up.  He’s indicted on five counts, including two counts of aggravated identity theft, and an ICE detainer is placed on the guy.  So far, so good you’d think.

But no.  Some idiot lawyer dreams up the goofball idea that this guy shouldn’t be convicted of identity theft because he didn’t know that stealing other people’s identity was a crime.  All they wanted to do was create fraudulent documents, and they didn’t know that someone else’s identity was assumed when they selected the victim’s Social Security number and started taking a machete to the victims credit record with it.  And some judge out there apparently bought into this goofy idea, and this has been appealed up to the Supreme Court after the 8th U. S. Circuit Court of Appeals exercised a little common sense and ruled against Ignacio Carlos Flores-Figueroa.

If for some crazy reason this guy gets off the hook during a moment of utter psychosis on the part of the Supreme Court, one might well wonder whether it will only be illegal aliens who can benefit by claiming ignorance of the law, or at least ignorance of the certain effects of their behavior when they break the law, or whether ignorance will be a new defense in criminal cases for everyone else as well.  “How was I to know that pulling this trigger thing would actually cause a bullet to fire out of this gun thing and strike some random guy three inches away in the temple and kill him?”  What a recipe for disaster.

That this case got anywhere near the Supreme Court really makes me wonder whether the courts have entirely been flushed down the toilet.  If they can’t apply the same wisdom regularly imparted (one would hope) in a middle school Social Studies class, our judicial system is in big trouble.

Federal appeals courts based in Atlanta and Richmond also have ruled in the government’s favor in similar cases, while the appeals court in Washington, D.C., has sided with defendants.

Maybe that answers the question.  Wouldn’t you know it was a DC appeals court that screwed this up.



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32 Comments

  1. Pat.Herve said on 21 Oct 2008 at 10:04 pm:
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    funny, I did not know that there was a speed limit on 66 - do you think I could get away with it?

  2. Emma said on 21 Oct 2008 at 10:41 pm:
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    Those of you who want to punish the Republicans and McCain over the immigration issue by either not voting or voting for Obama should take note. Obama will have the opportunity to swing the Supreme Court significantly further to the left. If the Supreme Court votes in favor of this guy, it won’t be “psychosis.” It will be business as usual.

  3. Emma said on 21 Oct 2008 at 10:43 pm:
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    correction: If the Supreme Court RULES in favor…

  4. Anonymous said on 21 Oct 2008 at 11:56 pm:
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    These illegals from Mexico aren’t known for their high IQ’s.

  5. NoVA Scout said on 22 Oct 2008 at 12:03 am:
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    Uninformed commentary on the role and actions of the Court, perhaps meant to be funny. If satire was the intent, I’ll give a pass on the ignorance charge, but don’t get the humor.

    The Court took the case because the Circuit Courts of Appeal have split on the issue. One of the important and valuable functions that the Court serves is to resolve differences of interpretation and result in the Circuits. The issuance of a writ to review the decision below does not necessarily reflect the ultimate position of the Court on the matter. It does reflect the fact that at least four Justices think the issue merits close scrutiny by the only court under the constitution capable of forcing harmony in lower court decisions.

    The question of interpretation that has caused the confusion is whether the federal identity theft statute in question covers situations where no “theft” is intended. Most crimes require a showing of specific intent. This is not, as your post and some of the commenters conclude, an “ignorance of the law” defense.

    Many false IDs for illegal immigrants seeking documentation in order to work do not reflect an intent to “steal” identity documents from particular individuals (Such thefts are a real problem, they have caused widespread damage to numerous Americans, and are generally not caused by illegal entrants). Illegals don’t normally snatch a purse or sneak a peak at a credit card slip to gain identity information and to assume the whole good will and credit history of a victim. Instead, they generally use randomly generated 3-2-4 Social Security-type numbers or other numbers (e.g., on fake drivers’ licenses) in order to get work. In these cases, it’s not clear that any “theft” occurred in the commonly understood meaning of the word of intentionally taking property of another or in the sense that Congress was trying to address in the statute. In the cases that the lower federal courts are deciding for defendants, the evidence describes situations in which the defendant was not attempting to appropriate a particular person’s identity, but randomly used an identity tag that, by happenstance, duplicated an existing valid number. It may well be that that act is or should be a criminal offense under state or federal law. The question that is dividing the Circuits and has gone up for review, however, is whether the evidence describes aggravated identity theft covered by a particular federal statute. (While we’re at it, contrary to your post, these immigrant phony ID cases rarely involve anything as complex as getting credit cards and trashing other folks’ credit. The primary, and usually only, motivation is to get past pre-employment screening in order to get a job. The most frequent result is that, when social security payments are withheld, some hapless, legal American’s SS account is credited with the fruits of another’s labor or that unreclaimable funds go into the Social Security Trust Fund.)

    If the Circuits are dividing on this issue, it probably reflects something a little more complex than their being “dumb.” Ditto the SC decision (which requires more than one Justice and is quite conservatively exercised, by the way) to take this under review. The lower courts need guidance. You should be pleased that the Supreme Court will straighten this out. That would seem uncontroversial to me.

  6. anon said on 22 Oct 2008 at 6:56 am:
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    Ignorance of the law as a defense? I almost hope that precedent actually gets set. It’ll be a free for all. Seems like things have to go to ridiculous extremes before people finally come to their senses.

  7. NoVA Scout said on 22 Oct 2008 at 7:49 am:
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    anon0656: read my comment immediately above yours. This is not an “ignorance of the law” defense. It’s a mens rea and statutory interpretation defense. My guess is that it won’t be successful. But take the time to understand what you’re talking about.

  8. Anonymous said on 22 Oct 2008 at 9:01 am:
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    NoVA Scout @ 22 Oct 2008 at 12:03 am:

    Many false IDs for illegal immigrants seeking documentation in order to work do not reflect an intent to “steal” identity documents from particular individuals

    No, they are just BORROWING the identity documents and they don’t give a rats ass who they hurt in the process.

  9. June_reston said on 22 Oct 2008 at 10:22 am:
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    NoVaScout -…. Many false IDs for illegal immigrants seeking documentation in order to work do not reflect an intent to “steal” identity documents from particular individuals (Such thefts are a real problem, they have caused widespread damage to numerous Americans, and are generally not caused by illegal entrants)…….

    However, those names and numbers that are plucked from the air are used to falsify a federal document (I-9) which is a felony - whether the names and associated numbers are real or not.

    Either way, using false documents to misrepresent oneself to an employer as authorized to work in the US is a felony and carries the same penalty.

    To presume illegal aliens do not know this is wrong is quite naive.

    Reducing the significance of the crime gives another high-five to the employers by legislators who want to set the punishment for hiring illegals to a public “my bad.”

    This sounds very much like legislators trying to reduce the significance of the crime to something along the lines of an underage college kid using a fake ID to to get into a club.

    We will continue to go round and round until employers are held accountable - in a serious way.

  10. TedKennedysSwimInstructor said on 22 Oct 2008 at 11:36 am:
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    Mortgage Prospects Dim for Illegal Immigrants

    Jose Luis Hernandez rose from vegetable chopper to sous chef at an exclusive New York restaurant — and saved $100,000 along the way. Recently, the illegal immigrant from Mexico contacted real-estate agents in Brooklyn, N.Y., where he currently rents an apartment.

    “I wanted to use my money as a down payment on a house,” says Mr. Hernandez, 32 years old. In doing so, he sought to join thousands of undocumented workers who in recent years have purchased homes using an Individual Taxpayer Identification Number, or ITIN, instead of a Social Security number. The Internal Revenue Service doesn’t give Social Security numbers to illegal immigrants; it issues ITINs, which enable them to open bank accounts and report their income to the government for tax purposes.

    But Mr. Hernandez quickly learned that things have changed. He says he was told that, “unfortunately, if you don’t have a Social Security number, you cannot buy property.”

    Dubbed ITIN mortgages, the loans that made homeownership a reality for thousands of undocumented workers have withered — although not because they underperformed.

    The loan program highlights contradictions in U.S. polices toward illegal immigrants. Even as the Department of Homeland Security sought to deport them, the Federal Deposit Insurance Corp. goaded banks and credit unions to bring undocumented immigrants into mainstream banking if they could prove they had steady income and were creditworthy. Beginning in 2003, when banks and credit unions first offered mortgages to undocumented immigrants, the small segment blossomed. The mortgages performed better than some others, partly because of stringent lending criteria and because they usually had fixed rates over a period of time.

    But amid the crackdown on illegal immigration and the economic slowdown, the market for immigrants who boast the alternative nine-digit taxpayer ID is dying.

    “If you want to buy a house and you’re here without papers, now you can forget it,” says Jesus Benitez, a real-estate agent who caters to Hispanics in Brooklyn.

    Lenders first began to retreat last year during the debate over illegal immigration. Many institutions received a barrage of attacks from clients who opposed the ITIN-mortgage scheme.

    “I got hate mail, including death threats, from people hostile to immigrant lending,” says Tim Sandos, who worked at Citigroup when that institution began underwriting ITIN mortgages for first-time, low-income buyers in a partnership with the housing arm of the Association of Community Organizations for Reform Now, or Acorn. Mr. Sandos is president of the National Association of Hispanic Real Estate Professionals.

    The environment worsened after the defeat in Congress last spring of an immigration bill, sponsored by Sens. John McCain (R., Ariz.) and Ted Kennedy (D., Mass.), which was designed to put undocumented workers on the path to legalization. Amid calls for a crackdown, the Bush Administration began raiding workplaces believed to employ illegal immigrants.

    Bank of Bartlett, a small bank that serves the greater Memphis area, endured the “political heat,” says John Byrd, president of Bartlett Mortgages, a unit of the Tennessee bank. “We felt we were doing the right thing; these people had been working here many years and paying taxes.” All told, the small bank originated about $20 million in ITIN mortgages over four years, each worth about $100,000.

    Less than 5% of Bank of Bartlett’s ITIN loans are delinquent. Nationally, for loans more than 90 days in arrears, ITIN mortgages had a delinquency rate of about 0.5% last year, compared with 9.3% for subprime mortgages, according to independent estimates. But the meltdown of the mortgage market and the ensuing financial crisis, have delivered a final death knell to the segment.

    “If the market closed for plain-vanilla loans, it is now more than closed for loans that fall outside the traditional mortgage pattern,” says Leonardo Simpser, chief executive of the Hispanic National Mortgage Association, a private-investment company in San Diego that underwrote several hundred million dollars in ITIN home loans.

    Late last year, Mortgage Guarantee Insurance Corp. pulled the plug on insurance for the loans. “Between the marketing efforts, risk management and underwriting, the volume from a cost-benefit perspective did not warrant continuing,” said Mike Zimmerman, senior vice president for investor relations.

    Unwilling to shoulder the risk alone, Bank of Bartlett and others began withdrawing from the ITIN home-loan market — though they continue to service their current clients.

    Meanwhile, Mr. Hernandez says he has no choice but to leave his cash in money-market and savings accounts in two banks. “I have a lot of money but I cannot invest it…,” he says. “It’s frustrating.”

    http://online.wsj.com/article/SB122463690372357037.html

  11. BothPartiesColludeAgainstYouAndMarketToYourFears said on 22 Oct 2008 at 11:54 am:
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    Hernandez’ money should be seized. On the basis of having been earned illegally.

    And I believe this court is conservative enough not to invent a right to fake identity, thank God.

  12. Ron said on 22 Oct 2008 at 12:43 pm:
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    This is not only a battle for the Supreme Court. The DC Circuit is often called “the nation’s second highest court,” and many Supreme Court Justices come from the DC Circuit. The courts rule via several three-judge panel, so if you happen to get a leftist one, you might get a different opinion than one dictated by common sense. In fact, this is true of all the Federal Appeals Courts, which is why there are such fierce battles in the Senate about judicial nominees.

    This case defies common sense. Surely the defendant knew that he was getting a government issued number that did not come from a government source. How could he NOT know that this was somehow improper? Clearly, his desire to work and make money overrode any ethical considerations (if he ever had any).

    I agree with NOVA Scout that the Supreme Court serves an important function in terms of resolving differences between the Appellate Courts.

  13. BothPartiesColludeAgainstYouAndMarketToYourFears said on 22 Oct 2008 at 1:38 pm:
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    I’m having a nightmare … in which Ginsburg authors a 5-4 majority opinion stating that Latinos who don’t speak English cannot be reasonably expected to follow rules or societal norms … and mandates a granting of US identity to everyone with a false ID on the grounds of equal treatment for all …

    But hopefully this is just a dream.

  14. AWCheney said on 22 Oct 2008 at 2:54 pm:
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    NoVA Scout said on 22 Oct 2008 at 12:03 am:

    NoVA, if you really believe that identity theft by illegal aliens does not affect real people, check this out and get back to me:

    http://scheney.wordpress.com/2008/07/09/identity-theft/

    This represents only a VERY small sampling of the damage they are doing every day, even when they are choosing random numbers. I firmly believe that identity theft should fall under the category of grand theft, and be commensurately punished…at the least!!

  15. Anchor Baby said on 22 Oct 2008 at 4:13 pm:
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    Nova Scout,

    I agree with you. If the state has merits they’ll be able to argue them in front of the SCOTUS. Personally, I would’ve rather seen the law changed to target true identity thieves vice fake documentation makers or to have the original charge dropped and charge them for using fake documentation (which the defendant had originally claimed he had done).

    So, I agree that this question should move on up but blame the prosecutors for not charging him under a more proper criminal violation law.

    And, I think it’s a valid question to be asked to the SCOTUS. I think it’ll still get squashed but it’s a valid question to have asked to them.

  16. Vigilant1 said on 22 Oct 2008 at 4:17 pm:
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    BothPartiesColludeAgainstYouAndMarketToYourFears said on 22 Oct 2008 at 11:54 am: Flag comment
    Hernandez’ money should be seized. On the basis of having been earned illegally.

    And I believe this court is conservative enough not to invent a right to fake identity, thank God.

    Remember the Senate’s comprehensive immigration law they tried to stuff down our throats last year? One of the items in that bill favoring the illegal invaders was the fact that anyone who used a phoney SSN would not be prosecuted for it and in fact, would be allowed to recover any monies paid into SS using said phoney number. How’s that for a government! Check it out if you have any doubt.

  17. FormerCOMemployee said on 22 Oct 2008 at 4:33 pm:
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    NoVa Scout did a very good job of explaining this but if I read this case correctly the question is simply based on the matter if an illegal alien used a ss# that did not belong to anyone did they commit theft? And if the number did belong to someone, do the police have to prove they (the illegal alien) know it belonged to someone and they were stealing someone elses identity? If I read it correctly this is the issue in question. The article I read quoted the ilegal aliens attorney saying that the federal governemnt was “piling on” when they could simply deport the illegal alien. With the theft charge, they face two years in federal prison. The attorney is attempting to remove the threat of two years in federal prison. I sure hope the court rules on the side of the governement or it will have severe consequences on us all if our identity is ever stolen.

  18. CONVA said on 22 Oct 2008 at 5:25 pm:
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    Round ‘em up and ship’em out!

  19. NoVA Scout said on 22 Oct 2008 at 8:47 pm:
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    AWC: totally agree, but the issue is whether the use of a fake ID that is not stolen (intent to deprive from a lawful owner) is identity theft. Most identity theft in this country (the kind where they clean out your accounts, wreck your credit etc.) is Yankee Doodle Dandy on Yankee Doodle Dandy crime.

    And, contrary to the original post and some early comments, this issue seems like precisely the kind of thing the Supreme Court should clarify.

  20. AWCheney said on 22 Oct 2008 at 11:01 pm:
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    Yeah, but what about those illegal aliens who are guilty of receipt of stolen property?

  21. chicko said on 22 Oct 2008 at 11:14 pm:
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    if the illegal alien gained benefits of any kind while using a fake SSN then that’s illegal.

    if they used a SSN belonging to someone else, that’s definitely illegal. ask someone (such as myself) who it actually happened too

    my “illegal alien” has been deported thank the lord.

    If the SSN was applied to a federal document then that’s a crime. regardless, if the illegal was not here it would not happen.

    just another reason to deport these people and remove the issue entirely.

    illegals are not stupid, they have multiple people (such as nancy lyall and MWB and such) to help them navigate the waters to avoid issues. with people such as these advocating for them, we’ll see more and more of identity theft and other problems. As long as these scumbags have someone to lean on (support groups) then they’ll continue to be a problem. Take away their support structures and they’ll be self-deporting. I blame the people that advocate for them more so than the illegal themselves. the advocates pave the way for the illegal acts.

  22. chicko said on 22 Oct 2008 at 11:21 pm:
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    and Nova,

    with regard to your post above while thoughtful it’s not theft or larceny (since nothing was carried away) but false pretenses if it’s being used (and it’s actually a real number) standard first year criminal law stuff. if it’s not a real number, it’s really not anything. Really nothing different than copying someones credit card number over the shoulder. wow, I actually remembered that lecture from my first year! but back to the subject, Unless it’s an official document of some sort and you are lying on it. Probably the worst that happens is the employee gets fired

  23. NoVA Scout said on 23 Oct 2008 at 6:02 am:
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    awc: receipt of stolen property is not an issue in the case. I assume that that is a crime in most states (again, there would have to be knowledge - if an acquaintance asks if he can park his Bentley in my driveway while he’s out of the country and I assent, believing that it belongs to him, there’s no way I can be convicted for receipt of stolen goods if it’s a stolen vehicle). But it’s not part of this fact pattern.

  24. AWCheney said on 23 Oct 2008 at 3:09 pm:
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    NoVA, unfortunately what I am able to glean from your comments is that you do not believe that identity theft is sanctionable. That the millions of dollars, not to mention the pain and heartache to honest Americans, perpetrated by these people is ignored by the law and they cannot be held accountable. My question to you is, if that is case, what CAN be done about it, or do you believe that it is not significant enough to be addressed? My second question is, did you follow that link I provided you and see just a little bit of what the common (and sometimes not so common) folk must deal with?

  25. chicko said on 23 Oct 2008 at 7:40 pm:
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    awc,

    identity theft is a horrendous crime. I know as I myself have been a victim of it. The illegals and everyone else who does it knows exactly what they are doing and what harm they are causing. There is no doubt about this. They know the chances of them being caught and prosecuted are slim. For the case of illegals, it’s just a quick walk across the border and all is forgiven (in their minds). Nova seems like a huge advocate for the illegals and it’s sad. I hope his/her credit report get’s merged with an illegal aliens or an illegal alien uses his/her SSN and we’ll see if he/she changes tune. Nova is just another apologist who thinks because she cracks a few hornbooks she’s johnny cochran.

  26. AWCheney said on 23 Oct 2008 at 7:55 pm:
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    Actually chicko, I happen to know that NoVA is a rather prominent attorney for whom I have a great deal of respect. I asked those questions seriously because I’m hoping that he can offer a legal perspective on the issue, in the way of a solution. I, too, have felt that he and I do not see eye to eye on the issue of illegal aliens, but I allow that his legal expertise is far beyond mine and I am aware that our government HAS fallen on the side of the illegals more often than not, particularly during this Administration. That aside, I am also inclined to agree to disagree with those whose opinion I respect.

  27. AWCheney said on 23 Oct 2008 at 8:02 pm:
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    I should have also added, however, that it doesn’t mean that I’m not going to give him a hard time every now and then. ;-)

  28. NoVA Scout said on 23 Oct 2008 at 11:09 pm:
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    Sorry to have been unclear AWC. Identity theft is a punishable crime under federal law and, no cout, under most states’ laws. It’s a particularly damaging activity in modern times, where much depends on the security of electronic transactions and where repair of the damage can take months or years. There was recently a fairly high profile example of this sort of thing where a young jet-set couple engaged in serial identity theft to support their high-flying lifestyle. Thankfully, they finally were caught and are awaiting trial.

    The perpetrators are largely US citizens and I have no problem with them cooling off in prison for a good long while. If illegals engage in the same sort of activity, I have no problem with them sharing a cell with the US Citizens who do the same thing. But the type of crime that you and Chicko are talking about is very rarely committed by illegal aliens. When aliens falsify an identity, they are generally trying to get enough proof of legal residence to get a job.

    That’s why Greg’s original post dealt with something quite different than credit theft, false credit cards, or trashing of credit ratings. I was addressing Greg’s story about the Supreme Court taking up the case of an illegal immigrant who had (apparently randomly) duplicated an identity number that belonged to an actual person. The question is whether that action violates federal law. I continue to think it a good, not a bad, development that the Supreme Court decided to reconcile different approaches to this type of crime in the various Circuit Courts of Appeal around the country. Can I assume that (but for Greg) we have unanimity on that point?

  29. AWCheney said on 23 Oct 2008 at 11:38 pm:
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    Actually, NoVA, that’s where we disagree. If you read my piece, and checked out all the videos therein (which are only REPRESENTATIVE examples of thousands upon thousands of similar cases), according to my research the most common recipients of stolen identification happens to be “undocumented” aliens and, more often than not, it is other illegal aliens who sold/provided it to them. As far as I’m concerned, it’s just another way for them to steal from those people who are in this country legitimately. The fact is, they KNOW they are breaking the law, but they just somehow believe that they are entitled to do anything, by whatever means, to take what they can out of this country. Even if they didn’t realize that what they were doing is illegal, since when was ignorance of the law any excuse? Oh yeah…now!!

  30. AWCheney said on 23 Oct 2008 at 11:45 pm:
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    And if you believe for one moment that the theft of identification does not lead to “credit theft, false credit cards, or trashing of credit ratings,” then you have either been blinded by the Bush/McCain amnesty rhetoric and haven’t looked into this yourself…or you’ve suddenly gotten very naive, which I really find hard to believe.

  31. NoVA Scout said on 24 Oct 2008 at 7:10 am:
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    AWC: I apologoize. I apparently am having trouble expressing myself clearly on this. I DO believe that identity theft leads to those things. That’s exactly how these rings or con artists operate. Sorry. I thought I said that. I must be having a senior lapse here. But I’m also saying that this type of crime is not an illegal immigrant phenomenon, it’s a modern societal crime largely perpetrated by citizens against citizens (although a wrinkle on this is that it is now happening with some frequency internationally - e.g., where a person in Germany pinches data on a person in the US or Switzerland and goes to town on the other guy’s nest egg).

  32. chicko said on 24 Oct 2008 at 1:34 pm:
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    I would agree..

    it’s not an “illegal immigrant” issue entirely, everyone does it. doesnt make it right though. Illegals frequently make up names and SSN’s, they dont care whether they are correct or not and they dont care if they causes anyone a problem (or not). They dont have to deal with the repercussions at all, the person who’s identity they stole did however.

    For nova - get your credit report merged with an illegal aliens and see how hard it is to get it fixed. With someone who is “legal” it’s not as bad to fix, you can usually find these folks. What do you do when the illegal splits town with your credit report in the balance? Basically you have about 6 months of pain and suffering writing nasty letters to the credit bureaus until things get cleared up. If you are lucky you dont have a problem getting your tax return back. These are true impacts, for illegals taking your SSN I think it’s even worse, it’s not like you can sue a “Jose Gonzalez”, wonder how many of them there are in Mexico?

    Oh…I’ll just file a lawsuit against an “un-named individual” that will work for sure :)

    Nova - get a taste of reality and realize the costs are real and the pain is real from the suffering these illegals inflict on our nation. Come out of your ivory tower and see what it’s really like in trenches.

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