Immigration Law

Expert: Kansas Immigration Case at Supreme Court Could Affect ID Theft Prosecutions

Ariane de Vogue, CNN, Mar. 18, 2019

"The Supreme Court agreed on Monday to hear a case [Kansas v. Garcia, No. 17-834] next term concerning Kansas' prosecution of three undocumented immigrants for using stolen Social Security numbers in an effort to gain employment.

Those convictions were overturned when the Kansas Supreme Court ruled that the federal immigration law at issue preempts a state from prosecuting undocumented immigrants, when the basis of the claim comes from information that has been culled from federal immigration forms.

The case raises the question about the extent to which federal immigration law preempts states from also trying to enforce immigration law.

"If the Supreme Court takes up the case and overturns the Kansas court's decision, all states could prosecute non-citizens for identity theft more easily," said Stephen Yale-Loehr, a professor at Cornell Law School said.

The Immigration Reform and Control Act preempts the state from using information to prosecute individuals if the information is on the federal I-9 form, even though the state did not use the I-9 form to gather the information for the criminal prosecutions.

At issue is a federal law, the Immigration Reform and Control Act, which makes it illegal to employ unauthorized immigrants and establishes an employment verification system for employers. As a part of the hiring process, employees are required to fill out federal forms with their information.

In Kansas, however, three immigrants were caught using other individuals' Social Security numbers in order to obtain employment. They were prosecuted under state law.
The Kansas Supreme Court overturned the convictions of three individuals for crimes like identity theft, holding that federal immigration law pre-empts the state from enforcing state criminal law."