Supreme Court Allows States to Prosecute Illegal Aliens for Identity Theft

By Janita Kan
Janita Kan
Janita Kan
Janita Kan is a reporter based in New York covering the Justice Department, courts, and First Amendment.
March 3, 2020Updated: March 4, 2020

The Supreme Court on March 3 upheld the power of states to pursue illegal aliens for identity theft, ruling against three men who used someone else’s Social Security number to gain employment.

In the decision, the justice ruled 5–4 that Kansas can rely on false information used by illegal aliens in their W-4 and K-4 tax-withholding forms to prosecute them for identity theft even if they used the same false information on their I-9 work authorization forms. The I-9 form is used by employers to attest that an employee is authorized to work.

The Immigration Reform and Control Act (IRCA) makes it a federal crime for an employee to provide false information on the I-9, but states that information on the form “may not be used for purposes other than for enforcement of this act.”

In the case at hand, cited as Kansas v. Garcia, the three men—Ramiro Garcia, Donaldo Morales, and Guadalupe Ochoa-Lara—who weren’t authorized to work in the United States, used misappropriated Social Security numbers (SSNs) to secure employment in Kansas. They used these misappropriated SSNs on their I-9 forms as well as their tax-withholding forms.

The three men were tried and convicted under Kansas criminal law for fraudulently using another person’s SSNs on their tax withholding forms upon obtaining employment. The Kansas Court of Appeals affirmed the lower court’s decision upon appeal, but a divided Kansas Supreme Court reversed the decision, ruling that the IRCA preempts the state from applying laws against fraud, forgeries, and identity theft because the information used in the prosecution was “contained in” the men’s I-9 forms.

The state’s top court also added that “the fact that this information was included in the W-4 and K-4 did not alter the fact that it was also part of the I–9.” Kansas then appealed the decision to the U.S. Supreme Court.

Justice Samuel Alito, who was joined by Chief Justice John Roberts and Justices Clarence Thomas, Neil Gorsuch, and Brett Kavanaugh, rejected the state Supreme Court’s reasoning, saying that if the reasoning was taken at face value, it means that no information placed on an I-9 such as an employee’s name, residence address, date of birth, telephone number, and e-mail address “could ever be used by any entity or person for any reason.”

“This interpretation is flatly contrary to standard English usage. A tangible object can be ‘contained in’ only one place at any point in time, but an item of information is different. It may be ‘contained in’ many different places, and it is not customary to say that a person uses information that is contained in a particular source unless the person makes use of that source,” Alito wrote in the majority opinion (pdf).

“The mere fact that an I-9 contains an item of information, such as a name or address, does not mean that information ‘contained in’ the I-9 is used whenever that name or address is later employed.”

Alito also held that the state laws don’t fall into a field that is implicitly reserved exclusively for federal regulation, including respondents’ claimed field of “fraud on the federal verification system.” He also added that “the mere fact that state laws like the Kansas provisions at issue overlap to some degree with federal criminal provisions does not even begin to make a case for conflict preemption.

“In the present cases, there is certainly no suggestion that the Kansas prosecutions frustrated any federal interests,” he wrote.

He also noted that the Trump administration had expressed support for Kansas’s position in the court and that federal authorities play a role in all three cases.

Justice Stephen Breyer wrote in the dissent, on behalf of Justices Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor, that he agreed with Alito that the IRCA doesn’t “expressly” preempt state laws from applying in the prosecutions. But he rejected the majority’s opinion that there was no implied preemption, saying that the federal law gave federal authorities the sole authority to prosecute fraud used to secure employment.

“The Act reserves to the Federal Government—and thus takes from the States—the power to prosecute people for misrepresenting material information in an effort to convince their employer that they are authorized to work in this country,” he wrote.

“Even though IRCA criminalizes that conduct, the Act makes clear that only the Federal Government may prosecute people for misrepresenting their federal work-authorization status.”