2 KANSAS v. GARCIA Opinion of the Court , No. 17–834. Argued October 16, 2019—Decided March 3, 2020

Analysis by James T. Daly

Can States use fraudulent information contained in a Federal I-9 form to prosecute a State crime?

Like most States, Kansas law makes it a crime to commit “identity theft” or engage in fraud to obtain a benefit. The Kansas identity theft statute criminalizes the using of any “personal identifying information” belonging to another person with the intent to defraud that person, or anyone else, in order to receive any benefit. Personal identifying information includes, among other things, a person’s name, birth date, driver’s license number, and Social Security number. Logically, Kansas courts interpret the statute to cover the use of another person’s Social Security number to receive the benefits of employment.

The Federal Immigration Reform and Control Act of 1986 (“IRCA”) requires employers and employees to complete the I-9 form. This form is used to verify the employee’s authorization to work in the US. The I-9 form also limits the use of information contained therein. It says that any information contained in or appended to the I-9 form may not be used for purposes other than for enforcement of the Immigration and Nationality Act (“INA”) or other specified provisions of federal law, including those (1) prohibiting the making of a false statement in a federal matter, (2) identity theft, (3) immigration document fraud and (4) perjury.

In addition, 8 U. S. C. §1324a(d)(2)(F) prohibits use of “the employment verification system” “for law enforcement purposes,” apart from the enforcement of the aforementioned federal statutes. As this case will show, prohibiting State law enforcement from using information in the Federal employment verification system to prosecute other crimes is silly.

So the State of Kansas wants to use the I-9 form information to prosecute a State identity theft law . The Respondents are three people who are not authorized to work in this country. In spite of that fact, they secured employment in Kansas by stealing the identity, including the social security numbers, of other people. Then they used the stolen numbers on the I–9 forms that they completed when they applied for work. The respondents also used these same stolen social security numbers when they completed their W–4 and K–4 tax withholding forms.

The State of Kansas used the false information on the W-4 and K-4 forms as evidence to support the charge of identity theft. In all three cases, respondents argued before trial that IRCA preempted their prosecutions. They relied on 8 U. S. C. §1324a(b)(5), which, provides that I–9 forms and “any information contained in or appended to such forms may not be used for purposes other than for enforcement of the INA or other listed federal statutes.”

The State dismissed the charges that were based on I–9’s and agreed not to rely on the I–9’s at trial. This is an absurd result and demonstrates serious flaws in the logic of 8 U.S.C. §1324a(b)(5).

The State maintained, however, that §1324a(b)(5) did not apply to the respondents’ use of the false Social Security numbers on the tax-withholding forms. The trial court allowed the State to proceed with the charges based on the respondent’s using the stolen Social Security numbers on the W-4 and K-9 forms.

The State court convicted all three respondents under one or both of the Kansas laws for fraudulently using another person’s social security number on tax-withholding forms. Three separate panels of the Kansas Court of Appeals affirmed their convictions. Pretty logical result, right? Identity theft ruins people’s lives so people that steal social security numbers should be prosecuted.

On appeal to the Kansas Supreme Court, Respondents reaffirmed their position. A divided Court reversed, concluding that the plain and unambiguous language of 8 U. S. C. §1324a(b)(5) prohibits a State from using any information contained within an I–9 as the basis for a state law identity theft prosecution of someone who uses another’s social security number in an I–9 form.

The court’s position is that any fact to which an employee attests in an I–9 is information that is “contained in” the I– 9, and cannot be used by anyone for any purpose other than the few listed in that Federal provision which as stated above, includes prohibiting the making of a false statement in a federal matter, identity theft, immigration document fraud and perjury.

Now here is the problem with 8 U. S. C. §1324a(b)(5). The Kansas Supreme Court said that the prosecutions in these cases ran afoul of 8 U. S. C. §1324a(b)(5) because the charges were based on respondents’ use in their W–4’s and K–4’s of the same false Social Security numbers that they also inserted on their I–9 forms. As a result, the Kansas statutes were expressly preempted insofar as the social security numbers provided a basis for the prosecutions.

Taken at face value, this theory would mean that no information placed on an I–9 form, 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. Since the fake social security numbers were listed on the I-9 forms, the fake social security number cannot be use to prosecute Kansas’ state identity theft laws.

Luckily, the US Supreme Court rejected this tortured logic. In the decision, the Court described the following beautiful hypothetical: Suppose that an employee truthfully states on his I–9 form that his name is Jim Smith. Under the interpretation of 8 U. S. C. §1324a(b)(5) that the Kansas Supreme Court adopted, no one could use Jim’s name for any purpose. If he robbed a bank, prosecutors could not use his name in an indictment. His employer could not cut a paycheck using that name. His sister could not use his name to mail him a birthday card.

The US Supreme Court reversed the Kansas Supreme Court and remanded the case back the them so they could reenter the world of reality and issue a decision that is logical. 8 U. S. C. §1324a(b)(5) must be repealed.