February 25, 2020

Kansas v. Garcia

IMMIGRATION LAW

Does Federal Immigration Law Preempt a State’s Prosecution of Suspects for Identity Theft After They Provided False Information on Certain Employment Documents?

CASE AT A GLANCE

Kansas separately charged and convicted three individuals of identity theft after they provided a false Social Security number on their employment forms. The defendants appealed, claiming that federal immigration law preempted their convictions. In particular, they argued that federal immigration law limits the use of information on the federal I-9 form, which requires an employee to attest to his or her authorization to work, to federal immigration enforcement, and not state crimes. The defendants contend that this provision preempts their convictions for providing false information on their W-4 and K-4 wage-withholding forms.

Docket No. 17-834
Argument Date: October 16, 2019
From: Supreme Court of Kansas
by Steven D. Schwinn
University of Illinois Chicago John Marshall Law School, Chicago, IL

INTRODUCTION

Federal immigration law provides that “any information contained in or appended to” an employee’s I-9 form can be used only for immigration enforcement and enforcement of certain federal crimes. The question in this case is whether this provision preempts Kansas’s use of false information on the defendants’ W-4 and K-4 wage-withholding forms.

ISSUE

Does federal immigration law, which limits the use of information on the I-9 work-authorization attestation form, preempt Kansas’s criminal prosecution of individuals for identity theft after they provided false identity information on their W-4 and K-4 wage-withholding forms?

FACTS

Kansas successfully prosecuted three individuals for identity theft after they provided false information on certain employment forms. In each of the three cases, the state charged the defendant with using another person’s Social Security number on the federal I-9 form (the federal form on which an employee attests to United States citizenship or work authorization) and the W-4 form (the federal wage withholding form); in two of the cases, the state also charged the defendant with using another person’s Social Security number on the K-4 form (Kansas’s wage withholding form). In each case, the trial court dismissed the charge for providing false information on the I-9 form. In each case, the defendant was nevertheless convicted of identity theft on the W-4 or K-4 forms.

The defendants appealed, arguing that their convictions were preempted by federal immigration law. In particular, they pointed to 8 U.S.C. § 1324a(b)(5), which limits the use of the I-9 form (the “attestation form”). That provision reads as follows:

Limitation on use of attestation form

A form designated or established by the Attorney General under this subsection and any information contained in or appended to such form, may not be used for purposes other than for enforcement of this chapter and sections 1001, 1028, 1546, and 1621 of Title 18.

In other words, “information contained in or appended to” the I-9 “may not be used for” any purpose other than federal immigration enforcement and certain federal crimes.

The defendants claimed that Kansas used just such information (the Social Security numbers) when it convicted them of providing false statements on their W-4 and K-4 wage-withholding forms. They argued that the provision therefore preempted their convictions.

Kansas Court of Appeals rejected these claims, but the Kansas Supreme Court reversed and ruled in favor of the defendants. This appeal followed.

CASE ANALYSIS

Under the Supremacy Clause of the Constitution, federal law preempts state law when federal law expressly preempts state law; when federal law occupies an entire policy field, leaving no  room for state law to regulate; when state law directly conflicts with federal law; or when state law would frustrate the purposes of federal law.

The relevant federal law in this case is the Immigration Reform and Control Act of 1986 (IRCA). Among other things, IRCA made it “unlawful for a person or other entity” to “hire, or to recruit or refer for a fee, for employment in the United States an alien knowing the alien is…unauthorized” to work in the United States. Under IRCA, employers “must attest, under penalty of perjury and on a form designated by the Attorney General by regulation”—the I-9 form—that they have “verified” that an employee “is not an unauthorized alien.” On the flip side, IRCA requires employees to attest on an I-9 form that he or she is “a citizen or national of the United States, an alien lawfully admitted for permanent residence, or an alien who is [otherwise] authorized.” And as relevant to this case, Section 1324a(b)(5) of IRCA, quoted above, says 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” the Immigration and Nationality Act (INA) and certain, specified federal criminal statutes (none of which is applicable here, because these cases were all state convictions).

Against this constitutional and statutory backdrop, the parties dispute whether 8 U.S.C. § 1324a(b)(5) preempts the defendants’ convictions under Kansas’s identity-theft statutes. If so, those convictions are invalid.

The state argues first that federal law does not expressly preempt the defendants’ prosecutions. It claims that 8 U.S.C. § 1324a(b)(5) provides that only the I-9 form and “any information contained in or appended to [the I-9] may not be used for purposes other than enforcement” of the INA and select criminal laws. In that way, they contend that the plain language of the federal statute suggests that it is focused on the I-9 form and supporting documentation, not the separate use of the same information on a different form (like the W-4 or K-4) that may also happen to appear on an I-9. In support of its reading, the state says that both the title of the section and other subsections focus only on the completed I-9 itself, and not other forms. It claims that the defendants’ misrepresentations that formed the basis of their convictions appeared on other forms (not the I-9 or supporting documentation) and therefore 8 U.S.C. § 1324a(b)(5) does not expressly preempt those convictions. Moreover, the state contends that the defendants’ reading (that 8 U.S.C. § 1324a(b)(5) expressly preempts their convictions based on misrepresentations on forms other than the I-9) would mean that states could not prosecute any fraud-related crimes based on information that is on the I-9, including “a name, address, date of birth, telephone number, e-mail address, Social Security number, or a state document like a drivers license.” According to the defendants, this would (absurdly) prohibit the states from combatting any identity theft.

The state argues next that the IRCA does not preempt the convictions under field preemption. The state says that the only relevant field is identity theft, and that Congress has not occupied it. To the contrary, the state points out that “the field of identity theft is marked by substantial federal and state cooperation,” showing that Congress has not occupied this field, and that the investigations in the defendants’ cases actually involved federal and state cooperation. The state says that the defendants wrongly identify the fields of false documents by unauthorized aliens to show work authorization, the employment verification process, and the unauthorized employment of aliens. It claims that Congress has not occupied those fields, either; but even if it did, the state’s prosecutions of the defendants had nothing to do with those fields, because the state prosecuted the defendants for providing false statements on tax forms that are unrelated to work authorization or employment verification.

Finally, the state argues that IRCA does not preempt the convictions under conflict preemption. The state says that the defendants did not, and cannot, argue that it is impossible to comply with both Kansas’s identity-theft laws and the IRCA. Moreover, it claims that the convictions do not “stand as an obstacle to IRCA’s broader purpose of prohibiting the employment of unauthorized aliens.” According to the state, that’s because the defendants’ convictions “were based on false statements they made on federal and state tax-withholding forms that play no role in IRCA’s system of verifying work authorization.” The state contends that the lack of conflict is underscored by the actual federal-state cooperation in the investigation in the defendants’ own cases.

The government weighed in on the side of the state and made substantially similar arguments.

The defendants counter that Kansas is wrong to argue that their prosecutions were “not related to the verification of employment authorization,” and therefore not preempted. According to the defendants, that’s because “Kansas irrevocably tethered these criminal charges to [the defendants’] use of false information in the employment verification process.” (Emphasis added.) For example, the defendants point out that their state-law convictions required the state to prove that they sought to obtain, by fraud, a “benefit.” (This is an element of the crime.) They claim that the state, in order to satisfy that element, offered just one argument—that the defendants provided false information in order to deceive their employers “into believing [that they] could be lawfully employed.” Another example: the defendants contend that the state, in one of the cases, argued that “[t]he gravamen of the crime was the use of another’s [S]ocial [S]ecurity number, and not the fact that the [S]ocial [S]ecurity number was used on W-4, K-4 and employment application.” The defendants contend that these and other factors in the state courts show that Kansas repeatedly took the position that the cases were about work authorization. They say that the state only abandoned that position now, in order to advance its anti-preemption arguments.

The defendants argue next that the IRCA expressly preempts their prosecutions. They look to the language of Section 1324a(b)(5), which bars the state from using the I-9 and “any information contained in or appended to” it except for immigration enforcement. But they say that this is exactly what Kansas did, by using the same information on an I-9 “through analogous state forms.” Moreover, they say that Kansas introduced the defendants’ I-9 forms and the identification forms used in the I-9 process into evidence in their prosecutions.

Third, the defendants argue that the IRCA preempts their prosecutions under field preemption. They claim that Congress,  through the IRCA, established a “comprehensive framework for ‘combating the employment of illegal aliens’” and occupied the field of fraud on the employment verification system. The defendants quote language from the Court in Arizona, regarding Section 3 of Arizona’s SB 1070: “The federal statutory directives provide a full set of standards governing alien registration, including the punishment for noncompliance” or else “every State could give itself independent authority to prosecute federal registration violations….” Arizona v. United States, 567 U.S. 387 (2012).

Finally, the defendants argue that their prosecutions conflict with the IRCA. They say that allowing these prosecutions would undermine the federal government’s prosecutorial discretion in the area of immigration enforcement, because it would allow a state to prosecute an unlawful immigrant even if the federal government decided not to. (The defendants point out that their preemption arguments apply only to their prosecutions, and not to all of Kansas’s identity-theft law. In other words, they claim that the IRCA only preempts prosecutions, like theirs, for fraud on the employment verification system, and not identity fraud in other contexts, even other immigration contexts.)

SIGNIFICANCE

On the one hand, this case is about a state’s effort to enforce its identity-fraud statute in a neutral, across-the-board way. By this reckoning, Kansas is simply trying to prosecute identity theft against those who can lawfully work in the United States and unauthorized aliens alike. It just so happens that these prosecutions involve unauthorized aliens, and any collateral immigration consequences as a result of their convictions. But the state stayed clear of prosecuting the defendants for false statements on their I-9 forms, and was therefore lawfully navigating between the federal government’s authority over employment authorization and its own authority and desire to prosecute identity theft—again, in a neutral, across-the-board kind of way.

But on the other hand, this case is about a state’s back-door enforcement of its own “immigration law.” By this reckoning, Kansas is using its criminal law to target unlawful aliens, convict them of state crimes, and saddle them with collateral immigration consequences that come with criminal violations. Kansas isn’t so much navigating between the federal government’s authority over employment authorization and its own desire to prosecute cases of identity theft so much as it is trying to side-step federal preemption by cunningly avoiding prosecutions based on the defendants’ I-9 forms. In this way, Kansas is effecting its own immigration policy—something that federal immigration law generally does not permit.

The Court’s latest word on this kind of situation came seven years ago in Arizona v. United States. In that case, the Court ruled that federal immigration law preempted much of Arizona’s SB 1070. This case is different from Arizona, to be sure. But it shares some commonalities around preemption, and it shares the overarching question of how far a state can enforce its own neutral laws in ways that affect immigration enforcement before it runs up against federal immigration law.

Justice Anthony Kennedy wrote for the Court in Arizona, joined by Chief Justice John Roberts and Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor. Justices Antonin Scalia, Clarence Thomas, and Samuel Alito concurred in part and dissented in part. The composition of the Court has obviously changed since 2012. But still, we should keep our eyes on Chief Justice Roberts (and whether he sees this case as he saw Arizona) and Justice Brett Kavanaugh (who may take a different view than Justice Kennedy).

Steven D. Schwinn is a professor of law at the University of Illinois Chicago John Marshall Law School and coeditor of the Constitutional Law Prof Blog. He specializes in constitutional law and human rights. He can be reached at sschwinn@jmls.edu or 312.386.2865.

PREVIEW of United States Supreme Court Cases 47, no. 1 (October 7, 2019): 33–35. © 2019 American Bar Association

ATTORNEYS FOR THE PARTIES

  • For Petitioner Kansas (Toby Crouse, 785.296.2215)
  • For Respondent Ramiro Garcia, et al. (Paul Whitfield Hughes, 202.756.8981)

AMICUS BRIEFS

In Support of Petitioner Kansas

  • Eagle Forum Education & Legal Defense Fund (Lawrence J. Joseph, 202.355.9452)
  • Immigration Reform Law Institute (Christopher J. Hajec, 202.232.5590)
  • Indiana and Eleven Other States (Thomas M. Fisher, 317.232.6255)
  • United States (Noel J. Francisco, Solicitor General, 202.514.2217)

In Support of Respondent Ramiro Garcia, et al.

  • American Federation of Labor and Congress of Industrial Organizations (Matthew James Ginsburg, 202.637.5397)
  • Immigration, Labor and Employment Law Scholars (Trisha B. Anderson, 202.662.6000)
  • Law Office of David J. Grummon (Brian Lowell Leininger, 913.638.6194)
  • National Immigration Law Center, The Southern Poverty Law Center and 28 Additional Organizations (Caryn Cecelia Lederer, 312.580.0100)
  • Puente Arizona et al. (Anne Lai, 949.824.9894)

In Support of Neither Party

  • Chamber of Commerce of the United States of America (Kathleen Marie Sullivan, 212.849.7000)