WASHINGTON – On Tuesday, the U.S. Supreme Court ruled in a 5-4 vote on Kansas v. Garcia, that illegal immigrants who use a stolen identity when filling out tax forms for employment can face criminal charges. The Court sided with Kansas and ruled that federal immigration law does not preempt state identity theft prosecutions.
The case was brought by three illegal immigrants who used someone else’s Social Security number on their I-9 forms, as well as on tax-withholding forms. In 2017, the Kansas Supreme Court overturned the convictions of the three for crimes including identity theft and making false information on state tax forms or private legal documents.
In a 5-2 ruling, the Kansas Supreme Court’s majority concluded that federal immigration law preempts Kansas from enforcing state criminal law in these cases because the false Social Security numbers and other information the defendants used had also been submitted on a federal I-9 Form used for employment verification.
Justice Alito wrote the opinion for the majority. Justice Thomas filed a concurring opinion, in which Justice Gorsuch joined. Justice Breyer filed an opinion concurring in part and dissenting in part, in which Justices Ginsburg, Sotomayor and Kagan joined.
“Taken at face value, [the Kansas Supreme Court’s] theory would mean that no information placed on an I-9 — including an employee’s name, residence address, date of birth, telephone number, and e-mail address — could ever be used by any entity or person for any reason,” Justice Samuel Alito wrote in the majority opinion. “This interpretation is flatly contrary to standard English usage.”
Kansas Attorney General Derek Schmidt said the decision makes clear Kansas may continue to enforce its identity theft laws without regard to the offender’s employment status or immigration status.
“Congress never intended to block Kansas from prosecuting people who falsify tax forms or private legal documents merely because the defendant also falsified federal employment verification forms,” Schmidt said. “Today’s ruling makes clear that state identity theft laws apply to everybody, including offenders who are in the country unlawfully and apply for a job.”
The cases now return to the Kansas Supreme Court, which will determine whether additional proceedings are necessary.