By Lisa Soronen

The Immigration Reform and Control Act (IRCA) states that “any information contained” in a Form I-9, which is used to verify a person’s eligibility to work in the United States, may only be used for limited federal enforcement. The question the U.S. Supreme Court will decide in Kansas v. Garcia is whether the IRCA pre-empts states from using information contained in the I-9 to prosecute a person under state law (in this case for identity theft).

A police officer pulled over Ramiro Garcia for speeding, and Garcia disclosed he worked at Bonefish Grill. An officer obtained Garcia’s I-9 and discovered the Social Security number he used to complete the form wasn’t his own. Kansas prosecuted Garcia for violating a state statute prohibiting identity theft. Kansas claimed it didn’t rely on the I-9 to prosecute Garcia since he also used the Social Security number on his state tax forms.

Garcia argued the prosecution was pre-empted by the IRCA. The Kansas Supreme Court agreed, holding that the IRCA expressly pre-empts using information in the I-9 to pursue state law violations. According to the court: “The language in [the IRCA] explicitly prohibited state law enforcement use not only of the I–9 itself but also of the ‘information contained in’ the I–9 for purposes other than those enumerated.”

The fact the information from the I-9 was available from other sources, according to the Kansas Supreme Court, does not “alter the fact that it was also part of the I-9.”

The U.S. Supreme Court has added a question about whether the IRCA impliedly pre-empts Kansas’s prosecution of Garcia. The Kansas Supreme Court didn’t address this issue.

Michigan filed a certiorari stage amicus brief in this case, joined by 10 other states, that argues “[e]very State has laws aimed at curbing identity theft, and each will need the I-9 information to enforce them.”

Lisa Soronen is executive director of the State and Local Legal Center and a frequent contributor to the NCSL Blog on judicial issues.