Schmidt urges high court to block limit on theft prosecutions

Kansas Attorney General Derek Schmidt sought Wednesday to convince U.S. Supreme Court justices to interpret federal immigration law in a way allowing states to continue prosecuting certain people accused of identity theft linked to application for a job.

Legal tension in the case stems from conflict between the federal government's supreme role as enforcer of immigration law and actions taken by state governments that touched upon actions of illegal residents.

The case followed the Kansas Supreme Court's reversal of convictions for noncitizens Ramiro Garcia, Donaldo Morales and Guadalupe Ochoa-Lara for identity fraud in Johnson County. Each had been convicted in district court of using stolen Social Security numbers on tax forms to get a job. On appeal, the trio successfully argued the federal Immigration Reform and Control Act pre-empted their prosecution in state court.

Schmidt, challenging the state Supreme Court opinion on behalf of Kansas and a coalition of like-minded states, told justices in Washington, D.C., that U.S. law didn't forbid Kansas from making use of documents submitted with or appended to a required federal immigration I-9 form whenever building criminal cases for identity or information theft.

He said blanket immunity shouldn't be manufactured for the three men to avoid responsibility for criminal acts.

"They argue that Congress has, in effect, granted them special immunity because their intent was to obtain employment that Congress has forbidden," Schmidt said.

Attorney Paul Hughes, who represented the Johnson County men during oral argument, said pre-emption of federal law applied because the men used a fake Social Security number on tax forms for the purpose of securing the work authorizations. Those I-9 authorizations were ordered by Congress in 1986 to curtail employment of undocumented persons, but the law limited government use of the mandated information.

"The way the state prosecuted here was absolutely tethered to federal work authorization," Hughes said.

He said the idea of federal pre-emption wouldn't apply if someone used false information to secure a credit card, apply to college or get a driver's license.

Chief Justice John Roberts said Kansas' view on prosecuting the three men would likely have been different if the cases were built upon information drawn directly from the I-9.

"I think it likely would," Schmidt said. "That is not what happened here. We concede that the state may not use the I-9 form."

He said Kansas prosecutors weren't interested in trying to act as an immigration enforcer, but to impose the state's identity theft laws.

Justice Ruth Bader Ginsburg pointed out that in all three instances the required tax withholding forms at the core of the Johnson County District Court prosecutions were submitted in one package to an employer in conjunction with the I-9.

"It's not that these were discrete episodes," she said. "In all three cases, the tax form, the I-9, the state tax form was all for the same benefit, that was to gain employment."

Schmidt said pre-emption applicable to the federal verification system shouldn't transform an accompanying resume, job application, background check form into a feature of the I-9 system.

"What Congress has fenced off here is the I-9 verification system, not the tax withholding system. Not other aspects of the employment relationship," he said.

In terms of Garcia, he was pulled over in 2012 by officers for speeding as he drove to work at a restaurant. A detective attempting to build a financial crimes case against Garcia obtained his employment application documents from the restaurant, including the I-9 and W-2 forms. The Social Security number on the forms belonged to a person living in Edinburg, Texas.

The trial court suppressed the I-9, but the judge rejected Garcia's assertion his W-4 should be suppressed because it contained the same identifying information copied from the I-9. Garcia was convicted on one count of identity theft.

The Kansas Court of Appeals upheld the verdict, but the state Supreme Court decided federal law prohibited prosecutors from using the Social Security card information Garcia entered on his I-9 and other forms. That prompted Schmidt's appeal to the U.S. Supreme Court.