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Supreme Court Could Expand State-Level Immigration Enforcement

Oct. 15, 2019, 5:00 PM

The U.S. Supreme Court will hear oral arguments Oct. 16 in a case that could dramatically change the landscape of immigration enforcement.

The issue before the justices is whether a state can use information on the federal I-9 employment verification form to prosecute someone for violating a state law.

The underlying case involves three unauthorized immigrants who were convicted of identity theft in Kansas after gaining employment by using someone else’s Social Security number on the I-9, which businesses must complete for all employees to ensure they’re authorized to work. They were caught, tried, and convicted under a Kansas state identity-theft law.

But the Kansas Supreme Court threw out the convictions on the ground that federal immigration law expressly prevents state law enforcement from using information on the I-9 form, which was developed for federal immigration law enforcement purposes.

Use of fake documents usually flies under the radar because employers only are required to determine whether a worker’s documents appear genuine, not whether they actually are. The Homeland Security Department’s E-Verify electronic verification system does check those documents against government records, but only is mandatory for federal contractors and in some states.

Leeway to Local Prosecutors

If the U.S. Supreme Court grants states more leeway to prosecute unauthorized immigrants for identity theft or other crimes, that could provide an avenue for local prosecutors itching to engage in immigration enforcement to use those laws to their advantage.

Former Maricopa County, Ariz., Sheriff Joe Arpaio, for example, frequently used state identity-theft laws as a means to raid businesses and round up unauthorized immigrants there. He carried out nearly 100 raids on businesses in his district before disbanding the unit he used to do so in 2015.

The Supreme Court case originated in Johnson County, Kan., which also has been ardently enforcing state identity-theft laws against unauthorized immigrants.

The county includes the city of Overland Park, where former Kansas secretary of state and gubernatorial candidate Kris Kobach started his political career. Kobach, known nationally for pressing claims of widespread voting fraud by noncitizens, was involved in crafting state-level immigration enforcement laws and Trump administration immigration policies.

Immigration attorneys are concerned about the potential for a patchwork of different immigration-related laws across the states. The state of Kansas, as well as the federal government, say the state’s highest court went too far.

The case is Kansas v. Garcia, U.S., No. 17-834, oral arguments scheduled 10/16/19.

To contact the reporter on this story: Laura D. Francis in Washington at lfrancis@bloomberglaw.com

To contact the editors responsible for this story: Karl Hardy at khardy@bloomberglaw.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com

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