SCOTUS to Rule on Illegal Alien Exemption from State Identity Theft Prosecution

MISSION, TX - APRIL 11: Undocumented immigrants from El Salvador sit handcuffed after being detained by the U.S. Border Patrol near the U.S.-Mexico border on April 11, 2013 near Mission, Texas. A group of 16 immigrants from Mexico and El Salvador said they crossed the Rio Grande River from Mexico …
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The United States Supreme Court is expected to rule this summer on a case it heard oral arguments on this week centered around an illegal alien who was prosecuted for identity theft for using a stolen Social Security number to obtain a job.

The illegal alien’s attorney argued that Ramiro Garcia in the Kansas v. Ramiro Garcia case should be immune from prosecution because U.S. laws put in place by Congress makes it impossible otherwise for them to find employment.

Kansas Attorney General Derek Schmidt argued on behalf of the state.

“In a typical and recent year, more than 15 million Americans became victims of identity theft,” Schmidt said.” One-third of those had their personal information misused in an employment or tax-related fraud setting.”

“Many of those victims were left to untangle reputations, eligibilities, and other finances,” Schmidt said. “That is why Kansas, like every other state, makes identity theft a crime.”

“Our laws apply in all settings to all people, citizen and alien alike.

Respondents were convicted because they stole other people’s personal information with intent to defraud,” Schmidt said. “But, in Respondents’ view, these state criminal laws that govern everybody else do not apply to them.”

 “They argue that Congress has, in effect, granted them special immunity because their intent was to obtain employment that Congress has forbidden,” Schmidt said. “This Court never has so held and should not now.”

The justices had a hard time accepting Garcia attorney Hughes’ argument about the conflict between state and federal immigration law, including Justice Samuel Alito.

Alito asked:

Well, how do we know that the federal government has taken the position that this particular case or cases of this particular type shouldn’t be prosecuted? This is not a situation like Arizona, where a state has criminalized something that is not criminal under federal law.

It’s a case where the same conduct is criminal under federal law and, Kansas says, under Kansas law. So where’s the conflict?

That’s the question at the heart of the case, as explained on the SCOTUSblog website:

Whether the Immigration Reform and Control Act expressly pre-empts the states from using any information entered on or appended to a federal Form I-9, including common information such as name, date of birth, and social security number, in a prosecution of any person (citizen or alien) when that same, commonly used information also appears in non-IRCA documents, such as state tax forms, leases, and credit applications; and (2) whether the Immigration Reform and Control Act impliedly preempts Kansas’ prosecution of respondents.

The American Prospect reported on the case, providing some background and explaining how this case could be significant in future prosecutions of illegal aliens.

The case stems from a traffic stop in August 2012 that led to uncovering the fact that Garcia had used a stolen Social Security number that was used on several state and federal forms for his job at a restaurant:

Kansas prosecuted Garcia for identity theft, along with two other immigrants who similarly provided false information. The various forms on which the stolen Social Security numbers were used were state (Kansas’s K-4 withholding form) and federal (W-4 withholding and the I-9, a federal form where someone proves their U.S. citizenship or authorization). Unlike the other forms, the I-9 is essentially an immigration form, covered under the Immigration Reform and Control Act of 1986 (IRCA).

In short, Garcia’s side argues that, because the I-9 is a federal form specifically prohibited from being used for anything except immigration, using information from the I-9 in a state identity-theft case is preempted by federal law. Because the three forms are submitted at the same time to obtain employment, Garcia’s counsel Paul Hughes contends that the same preemption that applies to the I-9 applies to the other forms as well.

During oral argument, the justices—liberal and conservative alike—seemed to find issue with Kansas Attorney General Derek Schmidt’s argument that the I-9 and the tax withholding documents should be considered disparate entities. Justice Sotomayor and Justice Kavanaugh argued that the I-9 and the other forms are submitted together. Despite counsel objections from Kansas, the justices insisted that this was the case, and it would mean that federal law preempts Kansas’s ability to prosecute for identity theft using information obtained from these forms.

“The package,” Justice Ginsburg said, “that was submitted to the employer was all one package, the I-9, the withholding form, federal and state. It’s not that these were discrete episodes.” And all three forms, she said, were for the same benefit: employment.

The American Prospect article pointed out that the SCOTUSblog called the case “immigration federalism” “that illustrates ‘the conflict between states interested in immigration enforcement and a federal [system that sees] … the federal government as the primary, if not sole, enforcer of immigration law.’”

Interestingly, amicus briefs in support of Kansas include the National Immigration Law Center, the Southern Poverty Law Center, and the Trump administration.

This case is Kansas v. Ramiro Garcia Docket No. 17-834 in the Supreme Court of the United States.

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