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Beyond ensuring that we can keep putting out our flagship weekly newsletter, subscribers will receive additional premium content, such as the Q&A with border-based immigration attorney Taylor Levy that we published last week. Below, you’ll find the first iteration of Eyes on SCOTUS, a breakdown of significant immigration-related cases currently pending before the Supreme Court. Going forward, this and other new features will be available to subscribers only.
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Kansas v. García
The issue: Can states use information found in I-9s and other federal employment verification forms to prosecute undocumented immigrants for identity theft?
The background: After local police officers in Kansas pulled over Ramiro García for speeding in 2012, they obtained García’s tax documents through a records check and discovered that he had used someone else’s Social Security number on the forms. The state charged and ultimately convicted García of identity theft. At least two other immigrants, Donaldo Morales and Guadalupe Ochoa-Lara, were similarly prosecuted after authorities obtained their employment documents and found they had used someone else’s information on them.
García appealed his state criminal case until it reached the Kansas Supreme Court, which overturned his conviction and ruled that Kansas’ attempt to prosecute undocumented immigrants for identity theft was “expressly preempted” by federal law. Put simply, a federal law — the 1986 Immigration Reform and Control Act (IRCA) — stipulates how employment documents like the I-9 and W-2 can be used. It doesn’t give states the power to use those documents to enforce state-level identity theft laws.
IRCA made it illegal for employers to knowingly hire undocumented immigrants. It also required the Attorney General to create a form — the I-9 — to help enforce the law, and states that “any information contained in or appended to such form may not be used for purposes other than enforcement” of said law.
The question at the heart of Kansas v. García isn’t whether states can prosecute undocumented immigrants for identity theft, but whether it can use information found in federal employment forms like the I-9 to do so — such as a fraudulent Social Security number — even if they don’t obtain that information by looking at the I-9 itself. (Typically, on someone’s first day of work, they’re asked to fill out forms proving that they are legally able to work in the United States. The I-9 is one such form; W-2s, W-4s, and 1099s are also filled out for this purpose and are submitted to the federal government along with the I-9.)
The arguments: Kansas’ argument is essentially that it should be able to prosecute undocumented immigrants for identity theft in the same way it prosecutes U.S. citizens and legal permanent residents.
The state’s Attorney General also argued that IRCA forbids local prosecutors from using the I-9 form, but not from using information that appears in the form but is obtained by looking at other federal documents, like a W-2 or W-4. In García’s case, the state had used information from state and federal tax forms to prosecute him. Those forms happened to have the same information as his I-9, and were submitted to the government along with the I-9 itself.
García’s attorneys are arguing that IRCA clearly states that the I-9 and “any information contained in or appended to” it, can only be used to enforce IRCA. Their argument is that since the information found in García’s W-4 is the same as that of the I-9, IRCA preempts the state’s use of either form for enforcement of local laws. But the law doesn’t forbid states like Kansas from using other documentation, like driver’s license records, as evidence.
Potential impact: The court seems divided on the issue. If it does side with Kansas, it’s likely that several states will attempt to use information found in I-9 forms to prosecute noncitizens for identity theft. Seventeen states — including Michigan, Arizona, Texas, and Indiana — have filed amici briefs in support of Kansas’ position.
The brief filed by Indiana on behalf of itself and 11 other states says that if the Supreme Court upholds the Kansas Supreme Court’s decision — which, again, is that using information in the I-9 is “expressly preempted” by federal law — that states “would be left unable to enforce” identity theft laws. “The interpretation of federal law adopted by the decision below would not only prohibit innumerable essential — and commonplace — state prosecutions,” the brief says, “but would also wreak havoc on a wide variety of state programs.”
These 17 states are home to an estimated 3.2 million undocumented immigrants, which is about one-third of the total undocumented population in the United States.
The issue isn’t whether states can prosecute noncitizens for identity theft, but what mechanisms they can use to do so. If the Supreme Court ultimately sides with Kansas, state prosecutors would have an additional tool in their arsenal allowing them to charge and convict undocumented people of identity theft, which could in turn lead to those people being put on ICE’s radar. These prosecutions could also affect a noncitizen’s ability to adjust their status. Although a federal appeals court ruled in 2016 that using a false Social Security number isn’t a “crime of moral turpitude,” the Department of Homeland Security has attempted to deny naturalization applications or challenge cancellation of removal proceedings on this basis before. Federal courts have also maintained that identity theft is not an “aggravated felony,” a designation for certain crimes that makes someone deportable.
Immigrant and labor advocacy organizations, however, say that allowing states to use I-9 information for identity theft prosecutions will ultimately harm immigrant workers. A brief filed by the Southern Poverty Law Center and 29 other organizations argues that the threat of prosecution could lead to employers threatening to report undocumented workers for identity theft, particularly as retaliation for organizing, seeking worker’s compensation, or reporting employers for wage theft.
Barton v. Barr
The issue: Can a lawfully-admitted permanent resident be deemed inadmissible for certain purposes, specifically the application of the stop-time rule in cancellation of removal?
The background: People in removal proceedings who have already been deemed inadmissible or deportable from the United States have a slim path to relief via a mechanism called cancellation of removal. Essentially, under 8 U.S.C. § 1129b, noncitizens can petition the Attorney General (in practical terms, petition their presiding immigration judge) to cancel their removal if they meet certain criteria.
For nonpermanent residents, including undocumented immigrants, these include a 10 years of continuous residence in the U.S., “good moral character,” not to have been convicted of or admitted to certain offenses, and to demonstrate that their removal would cause “exception and extremely unusual hardship” to a U.S. citizen or permanent resident spouse, parent, or child. If the cancellation is granted, they may receive permanent residency.
For permanent residents found deportable (or in rarer cases, found inadmissible if they, for example, spent too long outside the U.S.), the requirements are a little less demanding. To seek cancellation of removal, they need to have been a permanent resident for at least five years, resided in the country on any status for at least seven, and not been convicted of any aggravated felony.
This case hinges on the interpretation of what’s known as the ‘stop-time rule.’ Section (d)(1) of the statute specifies that, with the exception of battered spouses and children, the periods of residence and physical presence required to seek cancellation “shall be deemed to end… when the alien is served a notice to appear” — what initiates a removal proceeding — or “when the alien has committed an offense referred to in section 1182(a)(2) of this title” — the section of the law that describes who cannot be admitted to the United States —“that renders the alien inadmissible to the United States under section 1182(a)(2) of this title or removable from the United States under section 1227(a)(2) or 1227(a)(4) of this title” — the section describes who can be removed from the United States, as opposed to denied admission.
In this case, petitioner Andre Martello Barton and his mother had been admitted to the U.S. from Jamaica with B-2 tourist visas in May 1989. He became a permanent resident in June 1992, and was subsequently convicted of a variety of offenses in January of 1996, a few months before he would have been in the country for seven years. Barton was convicted of a couple of drug-related offenses in 2007 and 2008, after which the government put him in removal proceedings on section 1227 deportability grounds. After a judge ruled that Barton was removable, he petitioned for cancellation of removal. ICE attorneys contested the relief, arguing that Barton hadn’t fulfilled seven years of continuous residence, as his 1996 convictions had triggered the stop-time rule. Barton claimed that these earlier convictions did not trigger removability under sections 1227(a)(2) and (a)(4), and therefore had not stopped the time; in response, the government toggled to arguing that his 1996 convictions did trigger inadmissibility under 1182(a)(2), which is also grounds for stop-time.
The crux of the case is whether Barton, who was already admitted as a permanent resident and was not seeking admission to the United States, could be considered to have been “render[ed]” inadmissible for stop-time purposes. The immigration judge sided with the government, as did the Board of Immigration Appeals (in a single-member, non-precedential decision) and the U.S. Court of Appeals for the Eleventh Circuit. The Second, Third, and Fifth Circuits had reached the same conclusion in similar cases, while the Ninth Circuit found the opposite. The Supreme Court is reviewing the Eleventh Circuit’s decision and resolving the split between the Circuit courts. The case was argued before the court on November 4, 2019.
The arguments: Barton argues that inadmissibility isn’t a hypothetical status that exists outside of an adjudication of a request for admission, and because had already been admitted into the country and no adjudication has found him inadmissible, it is legally impossible for him to be inadmissible.
Given that the language of the statute allows time to be stopped if the noncitizen commits a specified offense and is rendered inadmissible, merely committing the offense is not enough. Further, he argues that the intent of the stop-time statute cannot have been to allow persons already admitted to be considered inadmissible, because that would have made the inclusion of the deportability criteria redundant.
The government has countered that inadmissibility can exist outside of a specific admissions decision, pointing to the fact that, while other subsections of 1182 specify that an noncitizen “seeking admission” can be found inadmissible, 1182(a)(2) does not, and therefore the inadmissibility is automatic if the requirements are met. While Barton could not be removed on inadmissibility grounds in the absence of an admissibility adjudication, the government argues that he can be inadmissible for stop-time purposes. In its view, a noncitizen is “render[ed]” inadmissible by fulfilling the inadmissibility criteria, regardless of whether such a determination has been made in court.
Potential impact: The outcome could have broad implications for cancellation of removal. If the Supreme Court sides with the government, any lawful permanent resident seeking cancellation of removal could be automatically denied if they had met criminal inadmissibility standards, which are a much lower bar than criminal deportability standards. This is particularly significant because these standards encompass not only a conviction, but an admission of committing or intending to commit certain crimes. As such, if the government was able to find anywhere in the record a permanent resident’s mention of committing an eligible crime within seven years of their arrival in the country, they could use this as a basis for an automatic denial of cancellation, even if there was never a conviction and never an adjudication of admissibility. A broad enough decision could also impact how inadmissibility is treated in other areas of immigration law, especially if an admissions adjudication is no longer required to establish it.