By the time many of us have just woken up, Manny, an undocumented immigrant I interviewed in South Texas, has already started his workday. (His name has been changed at his and his wife’s request.) Manny is a painter, and he has to start his work early in the morning to avoid the stifling South Texas heat. Manny has been in the United States for more than a decade, and he has been consistently employed since he arrived. During his time in the United States, he has never been arrested, he has started a family, and he has built a full life. Manny works five days a week at a job that an overwhelming majority of Americans would never even consider. Although he is otherwise law-abiding, he could not avoid breaking the law in order to get his job.
When he got that job, he did not have the money to hire an immigration lawyer to help him get a work visa or citizenship. With no knowledge of the U.S. immigration system and no money to pay an attorney, it seemed like Manny only had two realistic options for employment: 1) continue working odd jobs that paid cash, or 2) use another person’s Social Security number to procure employment.
But Manny had grown sick of under-the-table cash jobs because it was not uncommon for people to refuse to pay him after his work was complete. With a family to feed, he could no longer rely on odd jobs to make ends meet. So he did what a lot of other undocumented people in his position do: He used someone else’s Social Security number to fill in his I-9 form (a form that deals with employment eligibility verification).
Manny’s story is a common one, and the Supreme Court recently announced it would hear a landmark case centered on situations like his. Next term, the court will hear whether states can use information found in an I-9 to criminally prosecute those in Manny’s position, despite a federal statute that suggests they do not have that authority. The court’s ruling will have an enormous impact on the countless undocumented people in this country who use another person’s Social Security number to procure employment.
It’s important to understand that undocumented immigrants in the United States have many ways of getting another person’s Social Security number, and most of those ways actually involve the consent of the person they are taking it from. Often the Social Security number used by an undocumented immigrant is one of a family member or close friend. Even if a person consents to another person using his Social Security number when filling out employment forms, using that Social Security number falsely can be illegal under federal law. Some individual states, however, have also made it a crime to use false Social Security numbers on those forms under their identity theft laws. The looming Supreme Court fight centers on such a state case.
In Kansas, Ramiro Garcia, an undocumented immigrant who was working as a line cook, was arrested and convicted by state officials for identity theft after using someone else’s Social Security number to fill out his I-9 form. After appealing all the way up to the Supreme Court of Kansas, Garcia’s conviction was reversed based on the federal statute that seems to govern the form’s uses. The court ruled that the state’s identity theft prosecution “was expressly preempted” by federal law. The court explained that the language in 8 U.S.C. § 1324a(b)(5), the code that makes it a criminal and civil offense to hire undocumented immigrants, “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” in the statute. The enumerated purposes in that statute were limited to federal criminal prosecutions such as perjury, fraud in connection with identification documents, and visa forgery. State criminal prosecutions for identity theft are not included in those enumerated purposes.
Kansas appealed the state Supreme Court’s decision, and last month the U.S. Supreme Court agreed to hear that appeal. Kansas v. Garcia is now likely to be one of the blockbuster cases of the court’s next term. The case deals with complex issues of federal preemption of state laws and of statutory interpretation. One bottom line, though, is that if the court decides to reverse the Kansas Supreme Court’s decision, it could put countless undocumented immigrants at risk of being prosecuted by state governments.
The National Council of La Raza has reported that the majority of undocumented immigrants “pay income taxes using Individual Taxpayer Identification Numbers (ITINs) or false Social Security numbers.” If Kansas v. Garcia results in a reversal, then millions of undocumented people could have their I-9 forms and the information contained therein used against them in identity theft cases brought by individual states. People who work some of the most demanding manual labor jobs in this country could regress from earning an honest and consistent salary to working odd jobs for low and inconsistent pay. The industries that would be the hardest hit are some of the most integral for everyday American life. For instance, according to Pew, agriculture, food manufacturing, and construction are all industries in which unauthorized immigrants make up more than 10 percent of the workforce.
Some argue that an affirmation of the Kansas Supreme Court’s decision will only encourage undocumented immigrants to continue falsifying information on I-9 forms. Others argue that a reversal of the decision will make finding work prohibitively difficult for hardworking immigrants who need to feed their families. Both sides seem to be right from a public policy perspective, which is a symptom of a bigger issue: The current immigration regime in the United States is broken. That is a problem that can’t be fixed by the courts.