Kansas Defends Identity-Theft Prosecution of Undocumented Aliens

WASHINGTON (CN) — A lawyer for Kansas faced an uphill battle Wednesday in defending identity-theft charges against undocumented workers who use other people’s Social Security numbers to gain employment.

“I don’t believe you have a power as a state to prosecute crimes where the U.S. is a victim,” Justice Sonia Sotomayor said this morning at oral arguments.

“So why is it,” she added, “permissible for you to prosecute or to claim there isn’t a field preemption in doing exactly the same thing by calling this a fraud under state law, because the victim has to be the U.S.?”

Donaldo Morales, left, and his wife Isleen Gimenez Morales, right, pose for a photograph at an attorney’s office in Kansas City, Mo., Tuesday, Sept. 17, 2019. (AP Photo/Orlin Wagner)

Fighting to reinstate convictions tossed out as pre-empted under the Immigration Reform and Control Act, Kansas Attorney General Derek Schmidt denied that the state had targeted individuals because of their immigration status.

“We are enforcing our employment, our — our identity-theft laws, and we don’t want to give special exception to that to people because of their status,” Schmidt said.

Justice Stephen Breyer pushed back meanwhile at U.S. Solicitor General Christopher Michel for arguing that states can still go after immigrants for fraudulently filling out the federal work-authorization form known as an I-9 since they must put the same information on a tax-withholding form.

“Now, if there is a difference between what I just said and what I’d said when I was asking you the question, I’m not sure what it is,” Breyer said.

Michel said the state is relying on the same authority it would to prosecute a U.S. citizen who submit a false Social Security number on both the I-9 and tax-withholding form to conceal a criminal conviction or sex offender status.

“IRCA is an immigration … statute that deals with work authorization to work in the United States. There are other requirements of law,” Michel said. “But that has nothing to do with work authorization. Regardless of your work authorization status, you still have to submit the tax withholding form.”

Kansas is seeking a reversal after the state Supreme Court invoked the IRCA to overturn state identity-theft convictions of Ramiro Garcia and two other immigrants.

Paul Hughes, an attorney for Garcia with McDermott, Will & Emery, argued Wednesday that federal law pre-empts only the prosecution of a person who is using false information to apply for employment said.

“So the question is, is an element of the offense that an individual was showing as a matter of federal law that they were authorized for employment. If that is the nature of the fraud, then that is something that solely the federal government is authorized to prosecute,” Hughes said. “If it’s not that theory, our theory of pre-emption does not apply in those circumstances.”

Justice Elena Kagan asked Hughes how the court could apply that reading to all cases and how the court would ensure states were applying their law for employment-specific fraud.

“I think, as a practical matter your honor, what would happen in a case like this, if the state charges somebody with this issue that is around a hiring offense, saying that there’s identity theft, the defendant under the rule that we advance would be entitled to file a motion to dismiss that charge,” Hughes said. “The state would then have an opportunity to say no, that is not the theory of prosecution that we advance in this particular case.”

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