Justices Grapple With Identity Fraud by Undocumented Immigrants

U.S. Supreme Court justices grappled with a case that could bolster the power of states to prosecute undocumented immigrants for identity theft if they use someone else’s Social Security number to apply for a job.

Hearing arguments in Washington, the justices considered reinstating the Kansas convictions of three men who got restaurant jobs by putting other people’s Social Security numbers on the federal form that employers use to verify work eligibility. In throwing out the convictions, the Kansas Supreme Court said only the U.S. government can press prosecutions based on information entered on that form, known as the I-9.

A victory for Kansas could give states a new tool for battling illegal immigration. Kansas contends that a 1986 federal immigration law leaves states with broad power to tackle fraud when people apply for jobs.

“The states would, in essence, be able to go after unauthorized employment in a pretty substantial way,” Justice Brett Kavanaugh said.

But Kavanaugh was also among several justices who suggested states would have other ways to pursue people who use stolen Social Security numbers, regardless of how the case is resolved. He asked repeatedly whether states could prosecute people for putting a false number on a state tax form.

The lawyer for the three men, Paul Hughes, said states could do that without running afoul of federal immigration law. Hughes called the dispute a “narrow case” that would bar prosecutions only if states were focusing on the federal work-authorization requirements, as Kansas did in the case of his three clients.

‘Magical Words’

Justice Neil Gorsuch said states could just use a “different set of magical words” to press prosecutions if the court adopted Hughes’s position.

Kansas Attorney General Derek Schmidt said state law “still reaches misconduct elsewhere in the employment context if proven without use of the I-9 system.” The Trump administration is backing Kansas in the case.

Justice Elena Kagan said the state’s position “eviscerates” the Supreme Court’s 2012 ruling that struck down parts of Arizona’s first-of-its-kind crackdown on illegal immigration. That opinion said Congress had set up a “comprehensive framework” for preventing the employment of people who are illegally in the country.

“If you are right on this case, we might as well not have issued Arizona,” Kagan told Schmidt.

The Kansas case centers on the 1986 Immigration Reform and Control Act. A provision in that measure lets prosecutors use the I-9 “and any information contained in or appended to such form” only for specified federal crimes.

“It is Congress’s plain and clear expression of its intent to preempt the use of the I-9 form and any information contained in the I-9 for purposes other than those listed,” the Kansas Supreme Court said in one of the cases, involving Ramiro Garcia.

The case is Kansas v. Garcia, 17-834.

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