Does the Immigration Reform and Control Act either expressly or impliedly prevent states from using any identifying information included on an I-9 form, such as name, birth date and social security number, to prosecute individuals for state law crimes when that same information also appears on forms other than the I-9?
The Immigration Reform and Control Act (“IRCA”) limits the use of the I-9 and “any information contained in or appended to such form” to the enforcement of specific federal immigration and criminal laws. In this case, the Supreme Court will determine whether this limitation contained in IRCA prevents states from using information contained on the I-9 form to prosecute individuals where that same identifying information is found on documents other than the I-9. Kansas argues that the language of IRCA does not preempt Kansas from prosecuting respondents, including Ramiro Garcia, for false information provided on his K-2 and W-4 forms, even if that same information was also found on his I-9 form. Kansas asserts that such prohibitions would limit the traditional police power of the state. Garcia argues that the language of IRCA prevents states from prosecuting individuals for identity theft in work authorization based on false information contained on both the I-9 and other forms. Garcia asserts that such state prosecutions would interfere with the federal enforcement scheme and strong federal interest in employment verification. The Court’s decision in this case will determine whether state or federal law applies to the prosecution of undocumented individuals in similar cases and will affect the employment of unauthorized workers from the perspective of both employers and employees.
Questions as Framed for the Court by the Parties
(1) Whether the Immigration Reform and Control Act expressly preempts the states from using any information entered on or appended to a federal Form I-9, including common information such as name, date of birth, and social security number, in a prosecution of any person (citizen or alien) when that same, commonly used information also appears in non-IRCA documents, such as state tax forms, leases, and credit applications; and (2) whether the Immigration Reform and Control Act impliedly preempts Kansas’ prosecution of respondents.
On August 26, 2012, police pulled over Respondent Ramiro Garcia for speeding as he drove to work at a restaurant. The officer ran a routine records check on Garcia during the stop, and the results led the officer to contact a detective in the financial crimes department to come to speak with Garcia. The next day, the detective obtained Garcia’s employment application documents from the restaurant where Garcia worked, including his I-9 and W-2 forms. A special agent in the Social Security Office of the Inspector General, then informed the detective that the social security number Garcia used in filling out these employment forms belonged to an individual in Edinburg, Texas. Garcia was charged with one count of identity theft.
Before his trial, Garcia moved to suppress the I-9 form, arguing that the Immigration Reform and Control Act of 1986 (“IRCA”), a federal law which regulates employment of undocumented foreign nationals, expressly preempted his prosecution for identity theft under Kansas state law. The doctrine of preemption is based on the Supremacy Clause of the U.S. Constitution, which states that Congress may preempt state law with federal law. Where Congress expressly preempts state law, Congress’s language in a federal statute “explicitly limit[s] a state’s ability to legislate” on that same issue or to “apply its own constitutional or common law” to that issue.
At the suppression hearing, Garcia and the State agreed that the State’s case against Garcia would not be based on the I-9 form, so the trial court suppressed the I-9 form. Garcia also asserted that his W-4 form should be suppressed because the W-4 form contained the same identifying information copied from the I-9 form, but the judge declined to suppress this form. At trial, the jury found Garcia guilty of identity theft.
Garcia appealed his conviction to the Kansas Court of Appeals, but the Court of Appeals affirmed the lower court’s decision and upheld Garcia’s conviction for identity theft under Kansas law. Garcia then appealed to the Kansas Supreme Court, arguing that his conviction for identity theft under Kansas state law should not stand because IRCA, as the federal law on work authorization, preempted his prosecution under Kansas law. Reversing the appellate court decision, the Kansas Supreme Court held that IRCA’s language prohibited the State from using the social security card information Garcia entered on his I-9 and other forms to prosecute Garcia because IRCA’s language expressly preempted state prosecution of foreign nationals for identity theft used to become eligible for employment. The court noted that although Garcia was prosecuted under a broad Kansas statute prohibiting identity theft in general, that statute, as applied in Garcia’s case, conflicted with Congress’s language in IRCA. Moreover, the court emphasized that congressional intent is the determining factor in evaluating a preemption argument, and that IRCA’s language clearly demonstrates that Congress intended to prohibit states from using I-9 forms, and any information contained therein, to prosecute under state law for identity theft, an alien who uses another person’s social security information on their I-9 form. Moreover, the court continued that it was irrelevant that this information was also on other forms, including the federal W-4 form and Kansas’s K-4 form, because what mattered in the preemption analysis was that the social security information was also included on the I-9.
The United States Supreme Court granted certiorari on March 18, 2019. In doing so, the Supreme Court consolidated Garcia’s case with its two companion cases, which have similar fact patterns and were decided in the Kansas Supreme Court on the same day.
Petitioner Kansas argues that the language of the IRCA’s preemption clause, found at 8 U.S.C. § 1324a(b)(5), does not expressly preempt Kansas from prosecuting Garcia for using another person’s social security number on “forms other than the I-9.” Kansas contends that the law limits the use of information in or attached to the I-9 itself but does not extend that limitation to the use of the same information outside the I-9 form and its physical attachments. Kansas claims Garcia’s prosecution was based on misrepresentations made on state and federal tax forms, not on misrepresentations made on the I-9 form, and thus was based on forms used to calculate employee tax withholdings, not forms used to determine whether he was authorized to work in the United States. Kansas argues that because the W-4, K-4, and I-9 are distinct forms that are filed with three different government agencies for three different purposes, Garcia’s misrepresentations on each form amount to three distinct “criminal offenses.”
Kansas also maintains that the historical context and the way Congress chose to structure the IRCA support Kansas’s reading of the statute as applying solely to the I-9 form itself. Kansas contends that the I-9 form was created to curtail the employment of undocumented persons and, in drafting IRCA, Congress aimed only to regulate the use of information on the I-9 form, not information on forms unrelated to the employment verification process. Kansas suggests that Congress’s use of the phrase “information contained in [the I-9]” in the IRCA operates as an “evidentiary limitation” to the I-9 form itself, but not on the use of that information in other forms. Kansas further explains that when Congress uses this phrase in other statutes, the phrase refers to information contained in a specific location, such as the I-9 here. Kansas thus concludes that this phrase refers to information contained within the “four corners” of the I-9 form but cannot pertain to information on other forms like the tax-withholding documents from this case.
In response, respondents Ramiro Garcia, Donaldo Morales, and Guadalupe Ochoa-Lara (collectively “Garcia”) argue that Kansas mischaracterizes the nature of its prosecutions by alleging that the prosecutions do not pertain to federal work authorization, but instead pertain only to the use of stolen social security numbers on tax forms. Garcia explains that Kansas’s identity theft and false information statutes require the State to “prove fraud to receive a ‘benefit’ or ‘property,’” and that, in its prosecution of Garcia, Kansas characterized the wages and benefits of unauthorized employment as such a benefit or property, thus tying the identity theft prosecution to work authorization. Moreover, Garcia maintains that Kansas cannot claim that Garcia’s prosecution was based on state tax laws because these laws were not invoked during the prosecution. Additionally, Garcia contends that Kansas has reversed its position on whether Garcia’s act of filling out the I-9, W-4, and K-4 forms with false information constituted one act or three separate acts. Garcia notes that Kansas initially argued in the lower state courts that Garcia’s filling out of the K-4 form was part of the same act as filling out the W-4 form and the I-9 employment application because all three acts were part of the same attempt to defraud the restaurant at which he hoped to work. Kansas now, emphasizes Garcia, has reversed its position from the lower courts to argue that Garcia’s filling out of each form is a distinct criminal offense because each constitutes a false statement made three different times. Garcia argues that Kansas cannot, after convincing state courts to see these acts as one instance of fraud, reverse course and argue the opposite position that it did below, because doing so would warrant dismissal, or at least, under the doctrine of estoppel, prevent Kansas from making the argument that Garcia’s prosecution did not involve false work authorization.
Additionally, Garcia asserts that the IRCA expressly preempts Kansas from using false information located on an I-9 to prosecute fraud against the “federal employment verification system” by vesting the federal government with exclusive control over prosecuting this kind of fraud. Garcia maintains that the IRCA explicitly states that any information on the I-9 or appended to it can be used only for enforcement of the IRCA and four other specific federal offenses; this language, Garcia contends, demonstrates that any information provided to the employee verification system through the I-9 cannot be used for state prosecutions, but instead, only for federal prosecutions. Garcia further asserts that Congress reserved its right to prosecute employment authorization fraud through 18 U.S.C. § 1546(c), which lays out the specific role of the states to investigate fraud in work authorization, but not to prosecute. If states had the same prosecutorial power of the federal authorities, Garcia continues, this law would be rendered meaningless.
Kansas argues that not only is there no basis for express preemption of Kansas’s law in the IRCA, there is also no evidence in the language or context of the statute that suggests the IRCA impliedly preempts state law.Kansas explains that implied preemption occurs where federal regulatory schemes are either so detailed that they “leave no room for state regulation,” a phenomenon called field preemption, or where state and federal law conflict on an issue, a concept referred to as conflict preemption.
Kansas argues that the IRCA does not field preempt Garcia’s prosecution because the field in Garcia’s case is “identity theft,” not “false documents used by unauthorized aliens to show work authorization, the employment verification process, or the unauthorized employment of aliens.”The State emphasizes that field preemption typically applies only to narrow fields and that Congress has not legislated so specifically on identity theft such that no room has been left for state legislation on the issue. Kansas further maintains that Garcia was not prosecuted for information included on the I-9 form or “as part of” the process of verifying work authorization, and the Kansas statutes in the case do not speak to unauthorized employment, employment verification, or aliens showing work authorization. Moreover, Kansas maintains that even if these three fields were at issue here, the Supreme Court has not decided that Congress inhabits these fields. Kansas continues that the IRCA’s express preemption provision prevents states from prosecuting employers who employ undocumented persons but does not address whether states can penalize employees. Kansas contends that this statutory silence demonstrates that Congress did not “intend to occupy the whole field” of employment of aliens. Kansas further asserts that even if Congress occupied one of these fields, the Supreme Court has a duty to adopt an interpretation of the IRCA that opposes pre-emption.
Additionally, Kansas contends that its prosecutions of the respondents are not conflict preempted. Kansas explains that conflict preemption occurs where an individual cannot possibly comply with both federal and state law or where a state law prevents the enforcement of a federal law. Kansas believes that individuals need only supply accurate information on state and federal forms to fully comply with both the IRCA and state identity theft statutes, and that its prosecution of Garcia did not hinder Congress’s ability to enforce the IRCA. Kansas maintains that its false information and identity theft statutes do not conflict with the IRCA’s federal scheme because they do not regulate work authorization or the employment of unauthorized aliens. Further, Kansas does not argue that its state laws cover I-9 misrepresentations. Instead, Kansas asserts that its prosecution of Garcia does not usurp federal enforcement of work authorization, particularly because Garcia’s prosecution was not based on his immigration status, and the prosecutions were made possible by joint state and federal investigations designed to decrease identity theft.
Conversely, Garcia argues that even if the IRCA does not expressly preempt Garcia’s prosecution, it impliedly does so. Garcia first contends that the IRCA field preempts Garcia’s prosecution because Congress “occupies the field relating to the federal employment verification system” through IRCA’s uniform, detailed rules governing work authorization for undocumented immigrants. Garcia argues that any undocumented person who tries to obtain employment violates congressional policy through the IRCA, and the law provides appropriate criminal, civil, and immigration penalties for fraud at the federal level. Garcia asserts that both the detailed nature of this federal employment verification scheme and the functional, dominant role the scheme plays in preventing unauthorized employment of undocumented immigrants are evidence that Congress has such a strong interest in employment verification that it left no room for State law supplementation or enforcement.
Furthermore, Garcia argues that the prosecutions are also conflict preempted because the prosecution of Garcia for identity theft conflicts with the IRCA such that both the state law and the IRCA punish him for the same conduct. Garcia asserts that because the IRCA already has a well-established scheme for the prosecution of fraud in the work authorization process, Kansas cannot use its false-information and identity theft statutes to prosecute the same behavior. Garcia emphasizes that allowing a state and a federal statute to penalize the same conduct creates a risk that state and federal authorities will “exercise prosecutorial discretion differently” and, in doing so, individuals will be punished differently for the same conduct depending on whether the state or federal government prosecutes them. Furthermore, Garcia points out that the federal employment verification scheme is an important part of the larger national immigration policy, which is a “uniquely federal interest” within the purview of foreign relations, that the states do not share.
EFFECTS ON STATE’S ABILITY TO PROSECUTE FRAUD AND RELATED CRIMES
Indiana and eleven other states (“Indiana”), in support of Kansas, explain that forbidding states from prosecuting undocumented immigrants with any information contained on the I-9 form would impact ordinary identity-theft prosecutions, even if they do not involve I-9 forms. In situations in which an individual committed fraud not involving an I-9 form, Indiana posits, states will still be prohibited from using information in prosecuting identity theft crimes if that information appears anywhere on the I-9 form. Indiana warns that identity theft laws prohibiting misuse of information, both within the employment context and outside of it, including in the credit card or bank account context, will become futile against any criminal who previously applied for a job using that fraudulent information.
Puente Arizona and Others (“Puente Arizona”), in support of Garcia, counter that states’ abilities to prosecute fraud and related crimes will not be hampered by a finding that the IRCA preempts state law in this case because even with the IRCA in place, states can still prosecute fraud regardless of a perpetrator’s immigration status. Puente Arizona contends that states are still able to prosecute any individual for using false identifying information on forms such as credit card and housing applications. In fact, they argue, preventing states from prosecuting immigration-related offenses may allow local law enforcement to focus on addressing more traditional forms of identity theft.
FURTHERING CONGRESS’S INTENT IN REGULATING THE EMPLOYMENT OF UNDOCUMENTED INDIVIDUALS
Immigration Reform Law Institute (“Institute”), in support of Kansas, argues that the state identity theft prosecutions here produce an outcome consistent with the IRCA’s objective of prohibiting the employment of undocumented immigrants. The Institute asserts that under both the federal statute prohibiting employment of undocumented immigrants and the state law prohibiting use of false identification, unauthorized employment by undocumented immigrants will be prevented as the IRCA intends.
Moreover, the Institute argues that the federal government can still use all the federal remedies provided by Congress to prosecute individuals for violating laws against unauthorized employment, such as deporting violators or denying them permanent residency. Therefore, the Institute maintains, the federal government can enforce the federal statute and pursue Congress’s purpose of regulating the employment of undocumented persons regardless of states’ enforcement of their own identity laws. Furthermore, the Institute asserts that because fraudulent behavior is criminal and may lead to imprisonment under both state and federal law both state and federal enforcement mechanisms provide the same result and penalize the fraud commissioner. Similarly, the United States, in support of Kansas, contends that because Congress has also criminalized identity theft and related crimes, states’ punishments for identity-theft and related offenses is clearly consistent with Congress’s purposes and objectives of criminalizing fraud.
Immigration, Labor and Employment Law Scholars (“Scholars”), in support of Garcia, counter that if states can prosecute identity fraud, the prosecutions will conflict with Congress’s intent in passing IRCA—for the federal government to control undocumented immigrants using false identification to gain unauthorized employment. The Scholars maintain that if state prosecutions are not preempted by the IRCA, states have no obligation to follow the federal employment verification scheme, so states could set different and even harsher penalties for the same illegal conduct and undermine the government’s use of discretion in choosing who to prosecute. Scholars contend that federal discretion allows federal law enforcement officials to avoid bringing federal charges when appropriate, encourage cooperation in fraudulent identification investigations by maintaining leverage over unauthorized employees, and ensure unauthorized employee prosecution does not impede other investigations.
Additionally, Puente Arizona, in support of Garcia, emphasizes that a finding for Kansas would upset the balance Congress intended to strike between protecting workers from exploitation and discouraging unlawful employment. Puente Arizona asserts that federal officials can take a variety of enforcement actions against unauthorized employees—while state officials can only bring criminal charges—allowing the federal government to prioritize the investigation of employers and refrain from criminally charging employees. Similarly, the National Immigration Law Center and twenty-nine additional organizations (“NILC”), in support of Garcia, believe that having a uniform federal enforcement scheme for immigration laws protects unauthorized workers from unfair labor conditions. The NILC warns that employers of undocumented workers could use increased state criminal sanctions for unauthorized work as a threat to further exploit these workers and decrease workplace standards.
The authors would like to thank Professor Jacklyn Kelley-Widmer for her guidance and insights into this case.
- Stuart Anderson, Supreme Court Case Could be Bad for Business, Forbes (April 29, 2019).
- Samuel Garcia, Supreme Court to Hear a Case That Could Put Countless Immigrants at Risk of State Arrest, Slate (April 12, 2019).
- Garrett Epps, Sometimes the Supreme Court Sticks to the Law, The Atlantic (March 20, 2019).
- Stephen Dinan, Supreme Court to Settle Illegal Immigrant-Identity Fraud Case, The Washington Times (March 18, 2019).