Supreme Court to Rule on Identity Fraud by Undocumented Immigrants
(Bloomberg) -- The U.S. Supreme Court will consider letting states prosecute undocumented immigrants for identity theft if they use someone else’s Social Security number to apply for a job, agreeing to take up what could be a polarizing fight.
Heeding calls from Kansas and the Trump administration, the justices said they’ll decide whether the Kansas Supreme Court was right to say that only the federal government has the power under U.S. immigration law to press those types of prosecutions.
A victory for Kansas would give states a new tool for battling illegal immigration, letting them be more aggressive on an issue handled primarily at the federal level. The court will hear the case during the nine-month term that starts in October.
Kansas says the dispute is more about identity theft than illegal immigration. The state is trying to reinstate the convictions of three men who got restaurant jobs using another person’s Social Security number.
“Identity crime is a problem that far exceeds the capacity of the United States alone to prosecute,” Kansas Attorney General Derek Schmidt argued in court papers.
In throwing out the convictions, the top Kansas court said the 1986 Immigration Reform and Control Act bars state prosecutions based on information contained in the federal I-9 form, which employers use to verify work eligibility. The court pointed to a provision in the law that lets prosecutors use the I-9 “and any information contained in or appended to such form” only for specified federal crimes.
“It is Congress’s plain and clear expression of its intent to preempt the use of the I-9 form and any information contained in the I-9 for purposes other than those listed,” the Kansas Supreme Court said in one of the cases, involving Ramiro Garcia.
Kansas says prosecutors didn’t rely on the I-9 form and instead used Garcia’s tax withholding forms, which also contained the stolen Social Security number. The state said the “most natural reading” of the disputed provision is that it bars the use of the I-9 form itself and any attached documents, but not information that also appears on other forms.
The Supreme Court said in a 2012 case involving Arizona that Congress had set up a “comprehensive framework” for preventing the employment of people who are illegally in the country. The 1986 law doesn’t impose criminal penalties on undocumented immigrants but does allow federal prosecutions for fraud.
Lawyers for Garcia and the other two men say Kansas’s position can’t be squared with the 2012 ruling. “State prosecutions of offenses relating to employment eligibility conflict with the comprehensive federal regime,” they argued.
The Trump administration disagrees, saying state prosecutions won’t interfere with federal authority.
Kansas’s identity-theft law “does not regulate employment,” U.S. Solicitor General Noel Francisco argued. “It regulates the use of another person’s identity with the intent to commit fraud.”
The case is Kansas v. Garcia, 17-834.
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