U.S. Supreme Court divided over Kansas immigrant identity theft case

[Elderberry]

Reuters by Andrew Chung 10/16/2019

 The U.S. Supreme Court on Wednesday appeared divided over the legality of Kansas prosecuting three immigrants for violating identity theft laws by using other people’s Social Security numbers in a dispute over whether the state impermissibly encroached on federal control over immigration policy.

The justices heard arguments in the state’s appeal of a 2017 Kansas Supreme Court ruling that voided the convictions of the three restaurant workers and found that a 1986 federal law called the Immigration Reform and Control Act prevents states from pursuing such prosecutions.

The case tests how state criminal laws can be used against illegal immigrants and other people who do not have work authorization in the United States. President Donald Trump’s administration backed Kansas in the case. Trump has made his hardline policies toward immigration a centerpiece of his presidency and 2020 re-election campaign.

The court’s four liberal justices as well as conservative Justice Brett Kavanaugh, a Trump appointee, asked questions that voiced concern that the state’s pursuit of these cases effectively gave it a way to go after unauthorized workers, a role reserved for the federal government.

Other conservative justices appeared inclined to accept that the state’s prosecutions were not immigration-related. The court has a 5-4 conservative majority.

More: https://www.reuters.com/article/us-usa-court-identitytheft/u-s-supreme-court-divided-over-kansas-immigrant-identity-theft-case-idUSKBN1WV27K

[Elderberry]

Argument analysis: Justices probe the limits of prosecutions of noncitizens under state identity-theft laws

https://www.scotusblog.com/2019/10/argument-analysis-justices-probe-the-limits-of-prosecutions-of-noncitizens-under-state-identity-theft-laws/

The Supreme Court heard oral argument yesterday in Kansas v. Garcia, which presents a potential conflict between state identity-theft prosecutions and federal immigration law. The justices must decide whether the federal Immigration Reform and Control Act preempts the state’s prosecution of unauthorized noncitizens who used stolen social security numbers to gain employment. After a lively hour of argument, during which all but the famously reticent Justice Clarence Thomas asked multiple questions, the fate of Kansas’ application of its identity theft laws to the noncitizen-defendants remains difficult to predict. Generally speaking, however, the court’s liberal wing seemed disposed towards finding the state prosecutions preempted, whereas Justices Neil Gorsuch, Brett Kavanaugh and Samuel Alito appeared skeptical of the noncitizens’ preemption arguments.

IRCA sets out the federal process for verification of work authorization – the completion of the I-9 form – that everyone seeking employment in the United States must satisfy. IRCA’s Section1324a(b)(5) provides that the I-9 form “and any information contained in, or appended” to it “may not be used for purposes other than for enforcement of” IRCA itself or specific federal crimes related to false statements, fraud, misuse of visas and other immigration documents, and perjury. In this case, Kansas prosecuted several noncitizens based on false identity information entered on federal and state tax-withholding documents (the W-4 and K-4 forms, respectively). Those tax forms contained the same identity information entered on the I-9, and were submitted contemporaneously with the I-9, as part of the employment process. In the opinion below, a majority of the Kansas Supreme Court agreed with the noncitizens’ claim that IRCA precluded the state from applying its identity-fraud statutes to them.

Kansas Attorney General Derek Schmidt defended the state prosecutions by suggesting that IRCA only preempted use of the I-9 itself, but not use of the same information on the tax forms. He immediately faced questions from Justice Ruth Bader Ginsburg, who noted that the tax forms were submitted with the I-9 as “one package” to procure employment. She noted that the state’s theory would allow for easy circumvention of IRCA’s preemption provision, because procuring employment is likely to involve the submission of identity information on forms other than the I-9. Kavanaugh and Justice Elena Kagan probed the same point, noting that tax forms almost always go together with I-9 forms, allowing the state to prosecute in every case despite IRCA’s proscription. In response, Schmidt argued that in enacting IRCA, Congress was only concerned with the then-novel use of the I-9 itself, and how employers might use the information in those forms.

More at link.