States Should Be Allowed to Prosecute Illegal Aliens for Identity Theft, Supreme Court Told

October 16, 2019 Updated: October 17, 2019

Kansas should be allowed to prosecute illegal aliens for identity theft when they work under Social Security numbers belonging to others, even though federal immigration law already regulates whether such individuals may work in the United States, the state’s attorney general told the Supreme Court on Oct. 16.

Kansas and other states, backed by the Trump administration, want the legal authority to pursue illegal aliens for identity theft and other offenses. A victory by Kansas would give states more power to deal with illegal aliens, instead of relying solely on federal officials.

But illegal-alien advocates say unauthorized employment is already unlawful at the federal level so it’s unfair to subject such persons to further legal jeopardy at the state level. They also argue that Kansas is, in effect, creating its own immigration policy, something generally not allowed under federal law.

In this case, cited as Kansas v. Garcia, three illegal aliens sought restaurant jobs in Kansas using misappropriated identities.

The Kansas Supreme Court found the federal Immigration Reform and Control Act (IRCA) of 1986 preempts the application of state identity theft, identity fraud, and making false writing laws whenever any of the information needed for the prosecution is contained in or attached to a federal Employment Eligibility Verification—known as a Form I-9—even when the state prosecutes for the use of that very same information in non-IRCA documents.

“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 state court held.

Kansas Attorney General Derek Schmidt, a Republican first elected to the post in 2010, argued that the state supreme court’s ruling was absurd because it would prevent Kansas from neutrally enforcing its own laws. He told the justices that illegal aliens shouldn’t receive any “special immunity” from state prosecution just because the federal government is responsible for regulating immigration.

In a recent year, more than 15 million Americans became victims of identity theft and “many of those victims were left to untangle reputations, eligibilities, and other finances,” he said.

“That is why Kansas, like every other state, makes identity theft a crime,” Schmidt said. “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.”

Justice Elena Kagan challenged Schmidt, referencing the court’s 2012 decision in Arizona v. United States, in which the justices struck down much of the state law known as SB 1070 because it intruded on federal authority. That Arizona law mirrored the requirement in federal law that adult aliens carry proper identification on their person at all times and made it a state-level misdemeanor for an alien to be present in the state without the required documentation.

Schmidt’s argument “essentially … eviscerates everything that we said in Arizona, doesn’t it?” Kagan asked. “If you are right on this case, we might as well not have issued Arizona.”

Schmidt replied: “We aren’t targeting folks because of their status. We are enforcing our identity theft laws.”

Justice Samuel Alito said the Kansas law can be distinguished from the partly invalidated Arizona law.

“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,” Alito said.

“Ruling for Kansas would allow the states to go after unauthorized employment in a pretty substantial way,” Justice Brett Kavanaugh added.

The Supreme Court may not issue much of a definitive ruling in this case, Justice Neil Gorsuch told the aliens’ attorney, Paul Hughes, because Kansas and other states would be careful to use documents other than IRCA-approved documents to prosecute identify theft cases against those in the country without authorization.

“So we are deciding how many angels are dancing on the head of this pin? Is that what this case is about?” Gorsuch said, adding state officials could simply “use a different set of magical words” to go forward with prosecutions.

Oral arguments came the day after President Donald Trump vetoed a joint resolution of Congress disapproving of his national emergency declaration aimed at freeing up federal funds to build a wall on the border with Mexico. Opponents aren’t expected to be able to muster enough votes to override the veto.

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