Supreme Court to Consider Whether States Can Prosecute Identity Theft With Information Included in Form I-9

On March 18, 2019, the Supreme Court of the United States agreed to hear an interested immigration-related case in Kansas v. Garcia, Docket No. 17-834 [PDF version].

The question at issue was whether the State of Kansas could prosecute an alien for identity theft for using someone else's Social Security number. The Kansas Supreme Court ruled that it could not because Federal law preempts states from using information on or attached to a Form I-9, Employment Eligibility Verification, to prosecute state crimes. Kansas has taken the position that it gleaned the invalid use of social security information from tax forms, not the Form I-9, and that the Federal law is best read as precluding States only from using the Form I-9 itself. Thus, Kansas's position is that even if the information from a source other than the Form I-9 also appears on the Form I-9, the state can still use it to prosecute a local crime. The Federal Government submitted a brief agreeing with Kansas' position on this point but asking the Supreme Court to not consider Kansas's second question of whether the law prohibiting the use of the Form I-9 in the exercise of a state's traditional police powers to prosecute state law crimes exceeds Congress' constitutional power.

The Supreme Court ultimately decided to grant certiorari to hear only Kansas' first challenge. The case may have broad implications for whether and to what extent states may prosecute identity theft crimes using information from sources other than the Form I-9 even if the same information appears on the Form I-9. We will update the site with more information when the case is ultimately decided.