Kansas Heads to High Court in Bid to Prosecute Identity Theft

WASHINGTON (CN) – The U.S. Supreme Court took up a challenge Monday over whether Kansas can prosecute undocumented workers who used other people’s Social Security numbers on everything from tax documents to apartment leases. 

In the underlying case, Kansas prosecuted three such immigrants for identity theft and for making false writings without using an I-9, a type of form that the Immigration Reform and Control Act requires prospective employees to complete regardless of their citizenship status.

Though the immigrants in all three cases were convicted, the Kansas Supreme Court handed down a trio of reversals in 2017, concluding that the IRCA bars states from using federal tax documents in state prosecutions. 

“Although the state did not rely on the I-9, it does not follow that the state’s use of the Social Security card information was allowed by Congress,” Judge Carol Beier wrote in the case of an immigrant named Ramiro Garcia. “States are prohibited from using the I-9 and any information contained within the I-9 as the bases for a state law identity theft prosecution.”  

Per its custom Monday, the Supreme Court did not issue any statement in taking up the ensuing challenge to that opinion by Kansas.

The court will decide whether the IRCA expressly pre-empts states from carrying out the type of prosecutions at issue.

“We are not convinced the Kansas court’s application of the federal immigration statute is correct, so we are requesting review of all three cases by the U.S. Supreme Court,” Kansas Attorney General Derek Schmidt said in a statement announcing the appeal back in September 2017. “The Kansas court reasoned that the state cannot prosecute a defendant for falsifying state or private legal documents if the defendant also put the same false information on federal forms for employment verification. I doubt Congress intended that peculiar result.” 

Representatives for Schmidt’s office did not answer an email seeking comment. Garcia and the other immigrants are represented by Mayer Brown in Washington.

In an email Monday, Mayer Brown attorney Paul Hughes said federal law determines who has authorization to lawfully work in the country, and that states should not be allowed to circumvent this standard.

“Courts have universally held that enforcing alleged violations of the federal work-authorization system is a power committed solely to the federal government,” Huges said. “We look forward to demonstrating that Kansas’s actions are preempted by federal law.”

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