Identity Theft And Undocumented Immigrants


Given that the existence of undocumented immigrants in the United States is already a politically polarizing topic, the rhetoric doubles down when undocumented individuals commit crimes afterward. The caricature of undocumented immigrants creating victims and landing in the prison system is exactly what many want to hear in order to push for increased border security. In March, the Supreme Court granted certiorari in a case involving illegal immigrants using identity theft as a means to legal employment. Although it is not a violent offense, identity theft is an increasing problem for Americans that leaves real victims. The controversial topic of undocumented individuals, in this case, will likely form opinion along partisan lines as the Court moves to oral arguments and a ruling.

Ramiro Garcia, an undocumented immigrant, was arrested in 2012 for an accusation of identity theft, in which he allegedly worked in the U.S. with another individual’s Social Security number. He worked for several months at a Kansas restaurant under an I-9 form filled out with this fraudulent number. The SSN was also used in other state documents for taxes and rent. Two other similar cases have been added to the Supreme Court’s grant for certiorari, similar to Garcia’s. Donald Morales was charged with identity theft and two other offenses in State v. Morales when a special agent of the Social Security Administration determined Morales was using a Social Security number issued to another person. The number was used on his I-9 and similar documents to those in Garcia’s case. In State v. Ochoa-Lara, it was found that Guadalupe Ochoa-Lara used a stolen Social Security number on a W-4 to lease an apartment and be eligible for employment, and was charged with two counts of identity theft. All three cases build Kansas v. Garcia with the question: does the Immigration Control and Reform Act (IRCA) expressly or impliedly preempt states from using information provided on a federal form I-9 in a prosecution of any person when the same information also appears in non-IRCA documents? In the case of employment forms, the IRCA expressly protects Garcia and the other men, however, they are making the case that it implicitly protects them from prosecution if they are using the practice for other documents as well. If it is found that the IRCA does preempt state charges on all documents, then Garcia, as well as men in two other cases, cannot be charged with identity theft.

The defendants have a strong case on their side for preemption to alleviate the charges of identity theft. The Kansas Supreme Court concluded that the IRCA explicitly forbids states to penalize the use of the same information. They ruled that the Congressional intent of the 1986 law was to make employment easier for undocumented immigrants without fear of prosecution. Now, if this is found true by the Supreme Court, the question moves to preemption. The Supremecy Clause of the Constitution gives the Federal Government the power to preempt state law. This is confirmed in Arizona v. United States, where it is ruled that “the purpose of Congress is the ultimate touchstone” when evaluating whether a state law is preempted. “A field preemption claim involves circumstances in which Congress has legislated so comprehensively on a subject that it has foreclosed any state regulation in that area.”

If the question of preemption falls in favor of the undocumented immigrants, however, they may face a weakness with their claim over congressional intent of the IRCA. It is stated that the purpose of the 1986 law is to control and deter illegal immigration to the United States. This sounds completely contrary to the defendant and the Kansas Supreme Court’s interpretation, where it would essentially give illegal immigrants the legal privilege to commit identity theft. The rest of the law includes sanctions of employers that knowingly hire undocumented workers and increased enforcement at US borders. If the Supreme Court does in fact rule that the IRCA preempts Kansas state law, it feels contradictory that congressional intent was to let these men walk free after committing identity theft. Furthermore, if the defendants convince the Supreme Court that preemption does apply and the IRCA does protect them from charges on employment documents, the Court must be convinced that it extends to non-employment documents as well. Overall, the defendants have more than one hoop to jump through.

The apparent contradiction in alleged IRCA intent makes a strong case for the State of Kansas. The US government wrote in an amicus brief, “On respondents’ logic, Kansas could prosecute a U.S. citizen who presents a stolen driver’s license for identity theft even if he also appended that stolen license to his I-9, but a state prosecution of an unauthorized alien in the same position would be expressly preempted.” In other words, legal citizens must abide by the law and refrain from identity theft, while undocumented immigrants, who are already criminals, are above identity theft laws. In it’s appeal to the Supreme Court, Kansas also points out that the 1986 law is aimed at employers with false information on I-9 forms. Their task of proving that the IRCA implicitly protects them from the law if they use identity theft on non I-9 forms leaves their defense with a heavy burden of proof. Identity theft is the use of false information for “any benefit”, while the IRCA explicitly goes out of its way to specify employment documents in order to help these individuals find work. If Congressional intent was to legalize the use of fraudulent Social Security number’s in all cases, why would the law have any specifications?

Considering political polarization on the topic of immigration in the U.S., Kansas v. Garcia is a controversial case likely to be divided along ideological lines. The leftist position on this case is written by Samuel Garcia in a Slate article. His main point is the good intention of using another’s Social Security number in order to find a secure job, and that it is the only option for many undocumented immigrants. The writer seems to treat illegal immigrants as another victim class in the world of identity politics, which is absolutely absurd in the conservative mind.

The right will likely view the left as going out of their way to defend criminals. They will view them as not only defending undocumented immigrants who have already broken the law once, but those that also commit identity theft afterward. Since the Supreme Court only granted certiorari in March, little political commentary has been published on Kansas V. Garcia, however, conservatives will likely soon show their support for the state of Kansas. They will view this as a legal privilege for illegal aliens, to have the right to commit identity theft simply for being part of the social group “undocumented people.” The rosy picture painted in the Slate article will not sway the opinion of individuals with a hard-line stance on immigration.

If Kansas does in fact win the case, countless undocumented individuals would lose job security and those already in the country would be disincentivized from legal employment and would likely stick to the black market. If Garcia and the two other men win the case, it would set an interesting precedent for undocumented immigrants moving forward. It is not likely that the idea of exempting future prosecutions of Social Security fraud if the perpetrator is undocumented will sit well with the majority of many American citizens. Although there are certain methods of using another individual’s SSN with their consent, a Supreme Court ruling that changes the law of the land does not specify this, creating a questionable future for immigration law.