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Justice Breyer: Conservative Majority’s Decision in Immigration Case Created ‘Colossal Loophole’

The conservative majority on the Supreme Court of the United States ruled against undocumented immigrant Ramiro Garcia on Tuesday. Writing for the four liberal dissenters, Justice Stephen Breyer accused the majority of creating “a colossal loophole” that allows for utterly inconsistent law enforcement.

The case was consolidated with several similar fact-patterns as Kansas v. Garcia--and it’s a federal-versus-state turf battle over who has the power to prosecute undocumented immigrants for identity theft. Garcia is an undocumented immigrant who was working in Kansas as a line cook. Like many undocumented immigrants seeking solid employment, Garcia used someone else’s security number when filling out his I-9 form. The practice of falsifying I-9 forms–while illegal–is relatively common among undocumented immigrants, and usually involves the use of a social security number belonging to a consenting American citizen.

The State of Kansas prosecuted and convicted Garcia for his crime. Legally, Garcia’s appeal rested on an analysis preemption law– the principle that certain federal statutes can block individual states from acting within a specific legal arena.

Immigration and any manner of fraud that goes with it falls primarily onto federal turf under the Immigration Reform and Control Act (IRCA). Federal statute 8 U.S.C. § 1324a(b)(5)  gives the federal government authority for both civil and criminal enforcement of employment violations associated with hiring undocumented immigrants; the penalties are directed not at the workers falsifying their identifies, but at the employers who knowingly hire unauthorized employees. But that’s a federal statute, and its applicability is specifically limited to federal enforcement. The State of Kansas initiated its own prosecution against Garcia himself for his misdeeds; after he was convicted, he appealed on the grounds that Kansas should have been preempted from prosecuting him.

Writing for the five-justice conservative majority, Justice Samuel Alito found that nothing about the federal statute worked to preempt states’ right to prosecute an undocumented immigrant for identity theft. While the entire Supreme Court agreed that that nothing expressly in the text of the federal statute preempts state prosecution, only the conservative justices agreed that there was also no implied preemption.

While quoting past precedent that says federal law does make “a single sovereign responsible for maintaining a comprehensive and unified system to keep track of aliens within the Nation’s borders,” Alito wrote that “federal law does not create a comprehensive and unified system regarding the information that a State may require employees to provide.” That lack of unified system means that on at least some matters of immigration law, states are welcome to implement their own systems of enforcement.

But according to Breyer, Congress developed a “detailed and delicate design” for enforcing immigration law under the IRCA, meaning it must have intended to grant enforcement authority only to the federal government. With the majority’s ruling otherwise, individuals like Ramiro Garcia can now be prosecuted at the state level for falsifying an I-9 form–but not for falsifying a tax-withholding form filled out at the same time and with the same information.

Calling out this inconsistency, Breyer wrote the following: “To let the States prosecute such people for the former is, in practical effect, to let the States police the latter. And policing the latter is what the [IRCA] expressly forbids.”

Some now worry that widening the authority to prosecute immigration crimes will have sweeping effects.

[Image via Chip Somodevilla/Getty Images]

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos