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].” Continue reading →