By Kim Langona
Today, the U.S. Supreme Court will hear arguments to decide whether federal immigration law bars states from using certain work-related information in a criminal prosecution. In Kansas v. Garcia, No. 17-834, the Court will decide two questions. First, whether the Immigration Reform and Control Act of 1986 (IRCA) expressly preempts states from prosecuting individuals using any information entered on or appended to the federal Form I-9 even though that information also appears in documents unrelated to verification of work authorization (state tax forms, leases, and credit applications). Second—despite not appearing in Kansas’ petition requesting certiorari—the Court added the question: whether IRCA impliedly preempts Kansas’ criminal prosecution of three individuals whose cases have been consolidated.
Most famous as the last time Congress enacted sweeping amnesty legislation, IRCA makes it illegal to knowingly employ “an unauthorized alien.” 8 U.S.C. § 1324a(a). To enforce that prohibition, IRCA requires all prospective employees to verify their authorization to work by submitting federal Form I-9 and supporting documents. 8 U.S.C. § 1324a(b)(1)-(2); see 8 C.F.R. 274a.2(a)(2). Central to this case is the language of section 1324a(b)(5), entitled “Limitation on use of attestation form.” This section states that Form I-9 and “any information contained in or appended to [it], may not be used for purposes other than” enforcement of federal immigration law or specified federal criminal statutes: 18 U.S.C. § 1001 (false statements), 18 U.S.C. § 1028 (identity theft), 18 U.S.C. § 1546 (immigration document fraud), and 18 U.S.C. § 1621 (perjury). 8 U.S.C. § 1324a(b)(5).
The State of Kansas petitioned the U.S. Supreme Court to review three Kansas Supreme Court decisions decided the same day and involving the same issue. State v. Garcia, 401 P.3d 588 (Kan. 2017); State v. Morales, 401 P.3d 155 (Kan. 2017); State v. Ochoa-Lara, 401 P.3d 159 (Kan. 2017). These cases involve Kansas’ prosecution for identity-theft of three individuals—Ramiro Garcia, Donaldo Morales, and Guadalupe Ochoa-Lara—who illegally used other individuals’ social security numbers on their Form I-9s and state and federal documents. In keeping with section 1324a(b)(5), Kansas agreed not to use the Form I-9s as the basis of the identity-theft prosecutions. However, Kansas argued that this section did not bar it from using the individuals’ tax-withholding forms containing the same fraudulent social security numbers to prosecute them for identity-theft.
In these three cases, the Kansas Supreme Court held that IRCA expressly preempts states from using any information contained in Form I-9 for a state prosecution, even if the information was obtained from another source. In Garcia, the Kansas Supreme Court reasoned that section 1324a(b)(5) expressly preempted the state from using the fraudulent social security number on Garcia’s tax-withholding forms to prove the offense because that information was also contained in the I-9. Garcia, 401 P.3d at 599. The majority acknowledged that the State’s prosecution did not rely on Form I-9, but it stated that section 1324a(b)(5) “prohibit[s] state law enforcement use not only of the I-9 itself but also of [any]‘information contained in’ the I-9 . . . .” Id. In other words, section 1324a(b)(5) preempts use in a state prosecution of any information contained in or appended to the I-9, even if the information does not come from the I-9. The Garcia majority opinion, concurrence, and dissents are central to this grant of certiorari, while Morales and Ochoa-Lara simply adopt the Garcia reasoning.
The State of Kansas argues that the Kansas Supreme Court erred in its decision that section 1324a(b)(5) expressly preempts states from using any information that appears in the Form I-9 for prosecution regardless of its source. In its petition to the U.S. Supreme Court, Kansas makes two primary arguments. First, the state argues that the Kansas Supreme Court’s holding and reasoning conflict with Ninth Circuit and state decisions, as well as the U.S. Department of Justice (DOJ) position in prior litigation. Kansas argues that every other court to consider express preemption in this context has rejected it, including Puente Arizona v. Arpaio, 821 F.3d 1098 (9th Cir. 2016); State v. Martinez, 896 N.W.2d 737 (Iowa 2017); State v. Renyua, 807 N.W.2d 473 (Minn. App. 2011); and State v. Diaz-Rey, 397 S.W.3d 5 (Mo. Ct. App. 2013). Kansas argues that none of the lower courts actually embraced the express preemption argument that the Kansas Supreme Court decision adopted. Indeed, from Kansas’ perspective, some lower courts went as far as specifically rejecting express preemption.
Furthermore, Kansas argues that the DOJ also rejected express preemption in its Ninth Circuit amicus brief in Puente Arizona. According to Kansas, the DOJ’s brief states that section 1324a(b)(5) on its own does not bar a state from relying on the same information found in the I-9 but taken from another source, for example “‘employment applications, state payroll tax forms, credit release forms, direct deposit forms, and other documents not covered by the federal Form I-9 process.’” Brief of the United States, Puente Arizona v. Arpaio, 821 F.3d 1098 (Nos. 15-15211, 15-15213, 15-15215), 2016 WL 1181917, at *14 (quoting Arizona’s brief).
Second, Kansas argues that the Kansas Supreme Court’s misreading of IRCA raises constitutional issues by limiting traditional state authority. According to Kansas, the court’s reading of section 1324a(b)(5) is deeply flawed based on traditional statutory interpretation. Kansas argues that in enacting this section, Congress intended to create an evidentiary bar that simply precludes states from using the Form I-9 itself and any supporting documents attached to it for prosecution of an individual, not the same information that also happens to appear in other unrelated documents. Relatedly, Kansas argues that this broad reading of section 1324a(b)(5) ignores its caption—“Limitation on use of attestation form”—which supports the rationale that Congress’ intent was to limit use of the form itself. (Emphasis added). Finally, Kansas argues that reading section 1324a(b)(5) as an express preemption ignores section 1324a(h)(2) which is actually titled “Preemption.” Kansas suggests that, by keeping with the Kansas Supreme Court’s broad reading, States cannot prosecute even citizens and lawful permanentresidents who provide false information on a Form I-9 or an appended document, despite its irrelevance to immigration law.
Kansas concludes its argument by weaving together statutory interpretation with the alleged widespread effects of such a broad reading. It argues that the Court should apply the “constitutional doubt” or “clear statement” canons of statutory construction to avoid the constitutional issues that Congress likely did not intend. Referencing Bond v. United States, 134 S. Ct. 2077 (2014), Kansas explains that a court may choose to not read a statute in such a way that it will override the constitutionally appropriate balance between federal and state powers unless Congressional intent is reasonably explicit. In support of this argument, Kansas mentions an important policy consideration: identity crimes are a pervasive problem that exceed the federal government’s capacity to prosecute. According to Kansas, states must play a substantial role in combatting and prosecuting these crimes but are unable to do so under this broad reading.
In contrast, Respondents argue that the Kansas Supreme Court correctly held that federal law expressly bars these state prosecutions. According to Respondents, the plain language of section 1324a(b)(5) precludes the State from using “any information contained in”the I-9 for purposes other than those listed. Furthermore, Respondents argue that the title of this section, “Limitation on use of attestation form,” does not negate the plain language of the larger section which urges this interpretation. Additionally, Respondents assert that use of the word “[l]imitation” in section 1324a(b)(5) in contrast to “preemption” in section 1324a(h)(2) is not fatal—it merely signals that the former section has an “as-applied” preemption effect, not a facial bar of state laws in their entirety.
From Respondents’ perspective, the Kansas Supreme Court’s holding is narrower than the state Attorney General claims. According to Respondents, the decision is “as-applied” and focused solely on state efforts to regulate information used for employment authorization. In other words, Respondents argue that the decision does not invalidate any law or intrude on any state police power. In support, Respondents cite dissenting Justice Stegall’s “doubt[s] [that] the logic of today’s decision [would] be extended beyond the narrow facts before us.” Garcia, 401 P.3d at 606 (Stegall, J., dissenting). Should the decision extend further than the “as-applied” holding from the Kansas Supreme Court, Respondents acknowledge that Kansas will have an opportunity to challenge it then.
Additionally, Respondents argue that this decision is not in conflict with other lower courts that have considered this issue. They concede that there is some disagreement about which preemption theory applies, but they ultimately argue that this discussion is merely about legal reasoning and does not present a conflict in actual outcomes. Specifically, Respondents discuss both the Iowa Supreme Court’s decision in Martinez and the Ninth Circuit’s Puente Arizona analysis. Respondents emphasize that the Martinez court did conclude that federal law preempted the prosecution, although the court ultimately rested its reasoning on field and conflict implied preemption. Respondents also distinguish Puente Arizona from the Kansas Supreme Court’s holding, suggesting that Puente Arizona did not decide an “as-applied challenge” like what they claim is at issue here.
Moreover, Respondents conclude their case-by-case analysis with Reynua and Diaz-Rey by factually distinguishing these lower state courts and asserting that their respective supreme courts may ultimately part ways from their reasoning in a later case. Likewise, Respondents argue that the DOJ brief from Puente Arizona actually urged the Ninth Circuit to find state laws preempted when they criminalize any fraud that is committed to demonstrate an individual’s work authorization under federal immigration law.
According to Respondents, in addition to express preemption, field and conflict preemption confirm the same result. In fact, Respondents urge that the U.S. Supreme Court already summarized this statute in Arizona v. United States, 567 U.S. 387, 404 (2012), the landmark constitutional preemption case involving Arizona’s famous “show me your papers” law, stating: “Congress has made clear . . . that any information employees submit to indicate their work status ‘may not be used’ for purposes other than prosecution under specified federal criminal statutes for fraud, perjury, and related conduct.” Arizona, 567 U.S. at 405.
Respondents spend significant energy in their Brief in Opposition discussing why the doctrines of field and conflict preemption apply to this case. First, Respondents argue that field preemption applies because IRCA provides a comprehensive regulatory scheme that governs the entire field of employment verification. Second, Respondents argue that conflict preemption applies because state prosecution conflicts with the comprehensive federal regime, particularly when state and federal actors may unevenly apply prosecutorial discretion and sentencing. Respondents also argue that Kansas never actually asked the court to review implied preemption, thereby waiving the issue. Respondents vehemently reject the DOJ’s notion that the U.S. Supreme Court should sua sponte address this second issue not formally mentioned in the original petition—whether IRCA impliedly preempts the State prosecutions—which is precisely what the U.S. Supreme Court decided to do.
Kim Langona is a third-year law student at the University of Denver Sturm College of Law. Upon graduating in May 2020, she aspires to work in immigration law to advance migrants’ rights in her home state of Colorado.