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Can a State Prosecute Identity Theft or Fraud if False Documents are Used to Gain Employment?

The Chicago immigration lawyers of Zneimer & Zneimer follow all immigration cases at the United States Supreme Courts to keep our clients and the public informed.  The U.S. Supreme Court recently heard arguments in a case which will have far-reaching implications for undocumented workers.  Whether a state can prosecute identity theft if a person gives false documents to gain employment, is one of the questions before the United States Supreme Court in the case of Kansas v. Garcia, Court 17-834.  The decision below is State v. Garcia, 401 P.3d 588 (Kan. 2017).

Kansas makes identity theft a crime.  Defendants are foreign nationals who had been convicted of identity theft for using stolen identity to gain employment.  The Defendants’ attorneys maintain that the information on an I-9 form can only be used for employment verification and for no other purpose, including criminal prosecution because federal law limits the use of the information on the I-9 form to federal crimes.  The Defendants’ attorneys state that because the information to gain employment that workers provide on the I-9 form is also on the tax forms that are required at the same time, the State of Kansas cannot prosecute identity theft.  Otherwise, in essence, it would be using the information from the I-9 form to prosecute the crime, and the use of this information from the I-9 form is limited by federal law.  Even if Kansas bases the prosecution on information provided in the tax forms, as long as the tax form are provided at the same time with the I-9 form, and the information on the tax form is the same that the worker provided on the I-9 form, any prosecution will implicate information from the I-9 form, which is preempted by federal law.

As the name and the social security number were listed on the I-9 and the tax forms, by prosecuting identity theft in this scenario, Kansas is attempting to enforce federal immigration law, which cannot be done because federal law preempts such enforcement.  Section 1324a(b)(5)  of 8 U.S.C. states that the 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  [specific federal provisions].”

Kansas does not dispute that it cannot use the I-9 form as evidence to prosecute identity theft.  Kansas states that the fraud was not discovered through use of the I-9 forms at all for any of the Defendants, Mr. Garcia, Mr. Morales, and Mr. Ochoa-Lara.  Mr. Garcia’s fraud was discovered first in a records check at a traffic stop; Mr. Morales, from a separate investigation related to workers’ compensation; and Mr. Ochoa-Lara, from a separate investigation of different criminal conduct.  According to Kansas it is using the tax forms provided to gain employment, and not the I-9s.  The law is neutral and prohibits the theft of personal information by anybody, it is not used to control work by unauthorized aliens.

However, the I-9 form is a part of a package and the employer requires the I-9 and additional forms, including tax withholding forms, all of which are for the benefit of obtaining employment.  Kansas acknowledged that the tax form W-4s had to be present along with the I-9 forms, and both provide the same information, permitting Kansas to prosecute on the basis of the same information even though it may not specifically reference the I-9 form.  Kansas states that nothing in IRCA (the federal law) diminished the States’ long-standing power to prosecute crimes that are non-immigration offenses on non- immigration forms submitted for non-immigration purposes even if the information is the same as was on the I-9 forms.

The Defendants argue that if  the State has to prove that an individual used false information to obtain work authorization as an element of the crime, IRCA preempts the prosecution and the State cannot prosecute the individual for this offense.  The Defendants argue that IRCA preempts the Kansas law because the State prosecuted the Defendants for using false information to demonstrate federal work authorization.  Under the State statute, one element Kansas had to prove is that the Defendants used deceit to obtain property, and this was using false information to show employment eligibility to obtain a job.    The Defendants argued that federal law preempts prosecution for the use of false information to show that somebody is authorized under the federal immigration laws for employment, and that Kansas is essentially prosecuting the workers for violation of federal immigration laws.

The Defendants are asking the Court to adopt a rule that states may not prosecute individuals for using false information to demonstrate work authorization under federal immigration law.

The Chicago immigration attorneys of Zneimer & Zneimer are monitoring the case and will provide an update once the Supreme Court issues a decision.  If you need help with your immigration case, contact the immigration attorneys of Zneimer & Zneimer.