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In 1986, Congress enacted the Immigration Reform and Control Act (IRCA). IRCA made it illegal to employ illegal aliens, established an employment eligibility verification system, and created various civil and criminal penalties against employers who violate the law. As part of this law came the Form I-9, known to anyone who has applied for a job in the past 30 years. This is a largely toothless provision that does nothing to deter anyone from employing an illegal nor does it pose any noticeable bar to the ability of illegals to work, but it has created a booming black market in I-9 friendly documents.

What could have been a fairly formidable tool to deter longterm illegals has been effectively gutted by the courts.

In Flores-Figuroa vs. United States, the Supreme Court ruled that illegals using counterfeit social security cards could not be prosecuted for identity theft unless they knew that the bogus social security number belonged to a real person. The decision was 9-0, but three justices made it clear that their concurrence was based on the fact that the law provided for a greater penalty for users of social security numbers belonging to real people than it did for those belonging to no one or to a deceased person. Need I tell you where John Roberts voted?

Then in 2012, working at the behest of the Obama Justice Department, the US Supreme Court ruled 5-3 that states had no power to enforce federal immigration law. Ominously, Chief Justice John Roberts ruled with the liberal wing of the Court. While the Court agreed that states could impose criminal and civil liability on employers for employing illegals, it effectively forbade state officials from actually determining who was an illegal rendering the ability to sanction employers rather redundant.

In the upcoming session of the Supreme Court, a case will be heard that will determine whether anyone has any power to enforce US immigration law. The case in question is called Kansas vs. Garcia. This is the background.

On August 26, 2012, Officer Mike Gibson pulled Garcia over for speeding. Gibson asked Garcia where he was going in such a hurry. Garcia replied that he was on his way to work at Bonefish Grill. Based on the results of a routine records check on Garcia, Gibson contacted Detective Justin Russell, who worked in the financial crimes department of the Overland Park Police Department. Russell was in the neighborhood and came to the scene to speak with Garcia.

The day after speaking with Garcia, Russell contacted Bonefish Grill and obtained Garcia’s “[e]mployment application documents, possibly the W-2, the I-9 documents.” Russell then spoke with Special Agent Joseph Espinosa of the Social Security Office of the Inspector General. Espinosa told Russell that the Social Security number Garcia had used on the forms belonged to Felisha Munguia of Edinburg, Texas.

As a result of the investigation, Garcia was charged with one count of identity theft.

Garcia was convicted and the conviction was upheld on appeal. But the Kansas Supreme Court reversed. That court reasoned that because state officials were barred from using information on the I-9 for reasons other than verifying eligibility for employment that Kansas could not use the fact the fake social security number was used on state and federal tax returns and on an apartment lease as evidence of a crime.

The federal Immigration Reform and Control Act bars employers from knowingly employing undocumented immigrants. The act also requires employees to verify that they are eligible to work in the United States by submitting a Form I-9, and it strictly limits the use of information on or attached to a Form I-9. Because the Social Security numbers that the defendants were using appeared on their I-9s, the state court reasoned, the prosecution was trumped by the IRCA, even if the Social Security numbers also appeared on the defendants’ tax-withholding forms.

Hopefully, the court will use this as an opportunity to bring into alignment the web of conflicting rules in the area of immigration law. The Arizona vs. United States case did grave violence to the enforcement of immigration law by making it virtually impossible for state governments to do anything at all. If his case is upheld, it means that using fake documents is actually legal in the United States so long as you use them on an I-9 at some time.

But I wouldn’t count on it. They say the Supreme Court reads the papers just like everyone else. I think there is a great chance that Roberts is concerned about the push among Democrats to pack the Supreme Court and will be heavily tempted to vote to kill immigration enforcement just to show he can be reasonable.

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