Amicus Curiae Brief — Kansas, Petitioner v. Ramiro Garcia

No. 17-834

IN THE

_________

STATE OF KANSAS,

Petitioner,

v.

RAMIRO GARCIA, ET AL.

__________

Respondents.

On Writ of Certiorari to the

Supreme Court of Kansas

__________

BRIEF OF PUENTE ARIZONA

AND OTHERS AS AMICI CURIAE IN

SUPPORT OF RESPONDENTS

___________

BRAM T.B. ELIAS

UNIVERSITY OF IOWA

COLLEGE OF LAW

CLINICAL LAW

PROGRAMS

386 Boyd Law Building

Iowa City, Iowa 52242

(319) 335-9023

JOHN A. HATHAWAY

VONDRA & MALOTT, PLC

1934 Boyrum St.

Iowa City, IA 52240

(319) 358-1900

ANNE LAI

Counsel of Record

MÓNICA RAMÍREZ

ALMADANI

UNIVERSITY OF

CALIFORNIA, IRVINE

SCHOOL OF LAW

IMMIGRANT RIGHTS

CLINIC

401 E. Peltason Dr.,

Ste. 3500

Irvine, CA 92616-5479

(949) 824-9894

alai@law.uci.edu

August 13, 2019

Counsel for Amici Curiae

i

TABLE OF CONTENTS

Page

TABLE OF CITED AUTHORITIES .......................... ii

INTEREST OF AMICI CURIAE .................................1

SUMMARY OF ARGUMENT .....................................4

ARGUMENT ................................................................6

I. LOCAL

OFFICIALS

HAVE

USED

PROSECUTIONS

OF

IMMIGRANT

WORKERS TO CARRY OUT THEIR OWN

STATE-LEVEL IMMIGRATION POLICY ............ 6

II. THE ARIZONA AND IOWA EXPERIENCES

SHOW WHY THE COURT SHOULD FIND

STATE PROSECUTIONS OF IMMIGRANTS

FOR USING A FALSE IDENTITY TO WORK

PREEMPTED BY FEDERAL LAW ....................... 12

A. The State’s Prosecutions Impermissibly

Trench on a Field Already Fully Occupied by

Congress ................................................................. 13

B. State Efforts to Punish Immigrants for

Using a False Identity to Work Conflict with

the Federal Scheme ............................................. 17

III.A RULING FOR RESPONDENTS WOULD

NOT UNDULY IMPEDE STATES’ ABILITY

TO

PURSUE

IDENTITY

THEFT

INVESTIGATIONS AND PROSECUTIONS ...... 25

CONCLUSION ...........................................................28

ii

TABLE OF CITED AUTHORITIES

Page(s)

CASES

Arizona v. United States, 567 U.S. 387 (2012).. passim

Buckman Co. v. Plaintiffs’ Legal Comm., 531

U.S. 341 (2001) ........................................... 18, 20, 23

Chamber of Commerce v. Whiting, 563 U.S. 582

(2011)....................................................................... 25

Crosby v. Nat’l Foreign Trade Council, 530 U.S.

363 (2000) ......................................................... 11, 20

Hillman v. Maretta, 569 U.S. 483 (2013) .................. 17

Hines v. Davidowitz, 312 U.S. 52 (1941) . 13, 15, 17, 25

Hoffman Plastic Compounds, Inc. v. NLRB, 535

U.S. 137 (2002) . ..................................................... 13

Nat'l Ctr. for Immigrants’ Rights, 913 F.2d 1350,

1366 (9th Cir. 1990), rev'd on other grounds,

502 U.S. 183 ............................................................ 13

Puente Ariz. v. Arpaio, No. CV-14-01356-PHXDGC, 2017 WL 1133012 (D. Ariz. Mar. 27,

2017). ....................................................................... 12

Rice v. Santa Fe Elevator Corp., 331 U.S. 218

(1947) ...................................................................... 16

State v. Martinez, 896 N.W.2d 737 (Iowa

2017). ............................................................... passim

United States v. Alabama, 691 F.3d 1269 (11th

Cir. 2012) ................................................................ 23

United States v. Arizona, 641 F.3d 339 (9th Cir.

2011), rev’d on other grounds, 567 U.S. 387 ............ 7

United States v. South Carolina, 720 F.3d 518

(4th Cir. 2013)................................................... 16, 17

Valle del Sol Inc. v. Whiting, 732 F.3d 1006 (9th

Cir. 2013) .......................................................... 17, 19

iii

TABLE OF CITED AUTHORITIES—Continued

Page(s)

STATUTORY PROVISIONS

8 U.S.C. § 1101(a)(15)(U) ........................................... 22

8 U.S.C. § 1101(a)(15)(T) ........................................... 22

8 U.S.C. § 1182(a)(6)(C)(i).......................................... 15

8 U.S.C. § 1227(a)(3)(B)(iii) ....................................... 15

8 U.S.C. § 1227(C) ...................................................... 15

8 U.S.C. § 1324a ......................................................... 25

8 U.S.C. § 1324a(b)(4) ................................................ 15

8 U.S.C. § 1324a(b)(5) ................................................ 14

8 U.S.C. § 1324a(d)(2)(C) ........................................... 15

8 U.S.C. §§ 1324a(e)(4), (f) ......................................... 14

8 U.S.C. § 1324b ......................................................... 13

8 U.S.C. §§ 1324c(a)(1)-(4) ......................................... 14

8 U.S.C. § 1324c(d) ..................................................... 14

18 U.S.C. § 1546b ....................................................... 14

22 U.S.C. § 7101(b)(19) .............................................. 22

42 U.S.C. § 408(e). ...................................................... 19

Ariz. Rev. Stat. § 13-2002 .......................................... 27

Ariz. Rev. Stat. § 13-2008 .......................................... 27

Ariz. Rev. Stat. § 13-2009 .......................................... 27

Iowa Code § 715A.8 .................................................... 26

REGULATIONS

8 C.F.R. § 174a.10 ...................................................... 14

8 C.F.R. § 214.14 ........................................................ 22

iv

TABLE OF CITED AUTHORITIES—Continued

Page(s)

LEGISLATIVE MATERIALS

H.R. Rep. 99-682(I) (1986) ......................................... 15

132 Cong. Rec. S16,879–01 (1986) ............................ 14

Statement of President Reagan Upon Signing S.

1200, Nov. 10, 1986, reprinted in 1986

U.S.C.C.A.N. 5856-1, 5856-1 .................................. 13

COURT FILINGS

Amicus Brief of the United States (“U.S. Puente

Br.”), Puente Ariz. v. Arpaio, No. 15-15211,

2016 WL 1181917 (9th Cir. filed Mar. 25,

2016). ................................................................. 19, 24

Initial Expert Report of Jennifer Earl, Puente

Ariz. v. Arpaio, No. CV-14-01356-PHX-DGC,

Doc. 520-21 ((D. Ariz. filed July 1, 2017) .............. 27

Plaintiffs’ Statement of Facts in Support of

Motion for Partial Summary Judgment

(“Puente Pls.’ SOF”), Puente Ariz. v. Arpaio,

No. CV-14-01356-PHX-DGC, Doc. 520 (D.

Ariz. filed July 1, 2017). ................................. passim

OTHER AUTHORITIES

“Arizona Sheriff Joe Arpaio Ends Controversial

Workplace Raids,” NBC News (Dec. 19, 2014) ..... 10

Bruno, Andorra, Cong. Research Serv., RL

40002, Immigration-Related Worksite

Enforcement: Performance Measures (2015) ........ 20

v

TABLE OF CITED AUTHORITIES—Continued

Page(s)

Chishti, Muzaffar, Doris Meissner & Claire

Bergeron, At Its 25th Anniversary, IRCA’s

Legacy Lives On, Migration Policy Institute

(Nov. 16, 2011) ........................................................ 18

E-mail from Sara Fineran, Iowa Division of

Criminal & Juvenile Justice Planning to Phil

Brown, ACLU of Iowa (June 25, 2019). ................. 26

Lai, Annie, Confronting Proxy Criminalization,

92 DENV. L. REV. 879 (2015). .................................. 24

Revised Memorandum of Understanding

between the Departments of Homeland

Security and Labor Concerning Enforcement

Activities at Worksites (Dec. 7, 2011). ................... 22

Theodore, Nik, Insecure Communities: Latino

Perceptions of Police Involvement in

Immigration Enforcement (University of

Illinois at Chicago, 2013) ....................................... 28

Vasquez, Tina, “Will Trump Pardon ‘America’s

Best-Known Racial Profiler’?” REWIRE NEWS

(Aug. 22, 2017) .......................................................... 9

1

INTEREST OF AMICI CURIAE

Amici curiae are immigrants’ rights organizations

and law school clinics that were involved in litigating

two of the cases that the parties discuss repeatedly in

their briefs in the case at bar—Puente Ariz. v. Arpaio

and State v. Martinez. In both cases, preemption

served as an important check to ensure that local

officials did not continue to prosecute undocumented

immigrants for using a false identity to work. Amici

can attest to the harm that arises when local officials

see fit to appropriate criminal justice resources to

further their own immigration agenda. Amici have an

interest in ensuring that the Court’s decision in this

case does not foreclose the types of legal challenges

that were brought in Arizona and Iowa in the future.1

Puente Arizona is a grassroots migrant justice

organization based in Phoenix, Arizona, whose

mission is to develop, educate, and empower the

migrant community and enhance their quality of life

through

English

classes,

know-your-rights

workshops, health and wellness education, programs

for children and cultural events. It was one of the first

organizations to respond to workplace raids that the

Maricopa County Sheriff’s Office (MCSO) began

carrying out with the Maricopa County Attorney’s

Office (MCAO) in 2008 as part of crackdown on

immigration that eventually received national

attention. The state laws on which the raids were

1 Amici state that no counsel for a party authored any part of

this brief, and no person or entity other than amici and their

counsel made a monetary contribution to the preparation or

submission of this brief. All parties have consented to the filing

of this brief.

2

based punished the use of a false identity to work. At

the behest of its members, Puente Arizona decided to

bring litigation against county officials. It served as

the lead plaintiff in the case Puente Ariz. v. Arpaio.

The National Day Laborer Organizing

Network is a non-profit organization that works to

improve the lives of day laborers in the United States.

NDLON has over 40 member organizations

throughout the country, many of which run day labor

centers. NDLON seeks to unify and strengthen its

member organizations to be more strategic and

effective in their efforts to develop leadership,

mobilize, and organize day laborers in order to protect

and expand their civil, labor and human rights.

NDLON works for safer, more humane environments

for day laborers, both men and women, to earn a

living, contribute to society, and integrate into the

community. NDLON, along with others, represented

the plaintiffs in Puente Ariz. v. Arpaio.

The University of California, Irvine School of

Law Immigrant Rights Clinic is a law school clinic

in which clinic students, working under close faculty

supervision, provide direct representation to

immigrants on matters ranging from detention and

deportation defense to the protection of civil and

constitutional rights of immigrants. The clinic also

provides support to grassroots organizations working

on critical issues that affect low-income immigrants

and partners with community and legal advocacy

organizations on policy and litigation projects to

advance immigrants’ rights and immigrant workers’

rights. The clinic served as lead counsel for plaintiffs

in Puente Ariz. v. Arpaio.

3

The University of Iowa College of Law

Clinical Law Program's Immigration Law

Practice is one of two free immigration law service

providers in the state of Iowa. The clinic provides

representation of individuals in a range of

immigration matters, consults with immigration

policy advocacy organizations and works on systemic

projects and impact litigation related to immigrants'

rights. Law students working on under the

supervision of full-time faculty members represent

clients at all stages of proceedings. The clinic has

worked in a variety of settings to advance the rights

recipients of the federal Deferred Action for Childhood

Arrivals

(DACA)

program—among

others—to

participate fully in their communities. It represented

the ACLU of Iowa as amicus curiae in the State v.

Martinez case in briefing and at oral argument before

the Iowa Supreme Court.

4

SUMMARY OF ARGUMENT

At issue in this case is the question of whether

states have the power to punish undocumented

immigrants for fraud they engage in solely to

overcome their unauthorized status in the workplace.

For many immigrants living in the United States,

using a false identity is the only way they can earn

wages to support themselves and their families.

Federal law regulates such conduct directly and

extensively through a comprehensive scheme that

balances a range of different considerations. The

Petitioner (“the State”), however, asks this Court to

hold that states may also independently impose their

own sanctions on such conduct, indifferent to federal

considerations and outside the control of the federal

government.

Amici’s experiences in Arizona and Iowa

demonstrate that when states are permitted to

prosecute immigrants for using a false identity to

work, officials can use that authority to interfere with

the system Congress created. In Maricopa County,

Arizona, for example, local officials relied on state

felony identity theft and forgery statutes to carry out

a campaign of workplace raids against immigrant

workers, arresting and prosecuting hundreds of

workers without regard to whether such actions would

make it harder for federal officials to pursue

investigations against unscrupulous employers or

render immigrant workers even more vulnerable to

exploitation. In Iowa, local officials arrested, detained

and prosecuted a mother of three to whom federal

officials had already granted a reprieve from

5

deportation and a work permit, based on conduct she

engaged in prior to receiving the work permit.

When Congress enacted the employment

verification requirement in the Immigration Reform

and Control Act of 1986 (“IRCA”), it left the

prosecution of fraud in response to the employment

verification system to the province of a single

sovereign—the federal government—so that officials

could calibrate enforcement to meet the “purposes and

objectives of Congress.” Arizona v. United States, 567

U.S. 387, 399-400 (2012). A closer look at the text,

purpose, and structure of IRCA confirms that

Congress did not intend for states to be able to secondguess federal officials’ enforcement decisions by

pursuing their own sanctions against immigrants.

Such activity by states would both intrude upon an

area already fully and exclusively occupied by

Congress and conflict with the carefully drawn federal

scheme.

This is no less the case when a state proposes to

rely on documents other than the I-9 form to sanction

workers. Respondents in this case were prosecuted for

using a false Social Security number to work. The

State argues that its prosecutions were lawful because

prosecutors were eventually able to secure convictions

based only on documents other than the I-9 form, such

as the federal tax withholding W-4 form and the state

tax withholding form K-4. However, the W-4 and K-4

forms

are

employment-related

forms

that

Respondents were asked to complete at the same time

as the I-9 form, as a prerequisite to commencing

employment. From their perspective, they filled out

all of three of these documents using a single false

6

identity—a single Social Security number—to bypass

the employment verification requirement. If, as

explained below, Congress has in fact excluded states

from prosecuting workers for fraud in the employment

verification process, states may not achieve the same

result simply by relying on other inextricably

interrelated documents employees must also submit

in order to work. The fraud that is being punished is

the same, and prosecutions for such fraud do as much

damage to Congress’s “purposes and objectives,” id. at

399-400, as prosecutions using the I-9 form.

State authorities remain free, of course, to

exercise their traditional police powers to combat

fraud, theft and other crimes without regard to the

immigration status or nationality of a defendant.

Amici’s experience shows that, contrary to what the

State claims, a finding of preemption would not

unduly impede its ability to investigate those offenses.

Indeed, preemption may help to ensure the integrity

of state identity theft laws and prevent state and local

law enforcement resources from being diverted for

immigration-related ends.

ARGUMENT

I.

LOCAL OFFICIALS HAVE USED

PROSECUTIONS OF IMMIGRANT

WORKERS TO CARRY OUT THEIR

OWN STATE-LEVEL IMMIGRATION

POLICY

The experience of amici suggests that when states

are permitted to prosecute undocumented immigrants

for using a false identity to work, local officials are

7

prone to use this authority to enact their own statelevel immigration policy.

The Puente litigation, for example, was filed in

2014 by Puente Arizona and others as a response to a

then six-year campaign of worksite raids conducted by

Maricopa County Sheriff Joe Arpaio together with the

MCAO following Arizona’s passage of two state laws

that criminalized the use of false identifying

information to work. In 2007, Arizona passed House

Bill 2779, also known as the Legal Arizona Workers

Act (LAWA), which amended the state’s aggravated

identity theft statute to create a new ground for the

use of the information of another person—real or

fictitious—with the intent to obtain employment. The

next year, House Bill 2745 was enacted as a

supplement to LAWA, expanding Arizona’s nonaggravated identity theft statute to target the use of

identifying information for employment. Both laws

were conceived as part of Arizona legislators’

“attrition through enforcement” strategy, which

sought to make life so difficult for immigrants in the

state that they would “deport themselves.”2

During deliberations about the new state law

provisions, lawmakers made clear their intention to

take immigration policy into their own hands. A

prominent senator argued, for instance, that the terms

2 Arizona’s SB 1070 immigration law was enacted several

years later as part of this same “attrition through enforcement”

strategy. See United States v. Arizona, 641 F.3d 339, 366 (9th Cir.

2011), rev’d on other grounds, 567 U.S. 387 (Noonan J.,

concurring). This Court subsequently struck down three of SB

1070’s provisions in Arizona v. United States. See Arizona, 567

U.S. at 416.

8

needed to be harsh enough to guarantee that workers

would “stay in jail” and “never be allowed to be citizens

of the United States again.” Plaintiffs’ Statement of

Facts in Support of Motion for Partial Summary

Judgment (“Puente Pls.’ SOF”), Puente Ariz. v. Arpaio,

No. CV-14-01356-PHX-DGC, Doc. 520, ¶ 22 (D. Ariz.

filed July 1, 2017). Another senator, a co-sponsor of

H.B. 2779, discouraged his colleagues from

considering a reduction of the penalty for the newly

defined state offense because doing so “would be

viewed as a weakening of our . . . opposition to illegal

immigration.” Id. ¶ 21. The architect of both laws,

then Senator Russell Pearce, also went on the record

saying that he believed state action was necessary to

quell a “national epidemic” of unlawful immigration.

Id. ¶ 24.

While most counties in the state ignored the two

new laws, one county—Maricopa County—welcomed

their passage. During this time, the Maricopa County

Sheriff’s Office (MCSO) created a dedicated team

within the agency’s “Human Smuggling Unit” to

investigate complaints of the employment of

undocumented immigrants and the use of false

identification for employment. Id. ¶¶ 94-98. MCAO,

for its part, housed its prosecutions of workers for

violations of the new laws in its “Special Crimes

Bureau,” which focused at the time on “criminal

activity that violates immigration law.” Id. ¶¶ 99108.3 Together these specialized units carried out over

3 For many years, the MCAO website boasted that the

Special Crimes Unit prosecuted “Illegal Immigrant Crimes,”

which included “the use of a Social Security account or other

9

80 worksite investigations, resulting in the arrest and

prosecution of approximately 806 workers under the

state identity theft and forgery statutes. Id. ¶ 59.4

Sheriff Arpaio surmised that “99.9%” of those arrested

were “here illegally,” id. ¶¶ 77, 125, and the actual

figure was not that far off. See id. ¶ 90.

The record in Puente confirms that county officials

viewed their effort to enforce the new state laws as one

that was closely linked to immigration. Arpaio, who

took a keen interest in the worksite operations,

regularly asked for statistics on the number of

undocumented immigrants who were arrested. Id.

¶¶_121-24. MCAO also tracked the immigration status

of defendants. Id. ¶ 127. Additionally, the two offices

sometimes issued press releases together, declaring

that their worksite operations were helping to prevent

the “undercut[ing] [of] wages of hard working citizens

and legal residents” and “opening up job opportunities

for . . . citizens.” Id. ¶¶ 89-90.

Not incidentally, the raids themselves often

involved a significant show of force, with sheriff’s

identification to get a job in the United States (Employment

Identity Theft).” Id. ¶ 78; see also id. ¶ 72.

4 The worksite raids were part of the same overall

“crackdown” on immigration that thrust Arpaio into the national

spotlight and led to (1) a court ruling that his agency had engaged

in systematic racial profiling and violations of the Fourth

Amendment rights of Latinos in Maricopa County; and (2) a

finding of criminal contempt after Arpaio refused to stop. See

Tina Vasquez, “Will Trump Pardon ‘America’s Best-Known

Racial

Profiler’?”

REWIRE NEWS

(Aug.

22,

2017),

https://rewire.news/article/2017/08/22/will-trump-pardonamericas-best-known-racial-profiler/; Puente Pls.’ SOF ¶¶ 13637.

10

deputies from multiple units (including SWAT and K9) participating. Id. ¶ 131. Up to hundreds of workers

were detained at a time. See, e.g., id. ¶ 62. Those

arrested for state law violations were confined to the

county jail for months without the possibility of bail

and charged with multiple felony counts—one count

per document—with potential exposures of multiple

years in prison per count. See id. ¶ 143.

As expected, the raids generated panic and fear in

the immigrant community. Some retreated from

public life and, critically, others became unwilling to

complain about labor violations in the workplace. Id.

¶¶ 143, 185. This was the very scenario Congress had

sought to avoid when enacting IRCA, see infra, and

yet here it was playing out in Maricopa County.

Fortunately, workers with Puente Arizona were

willing to file suit, and as a result, Arpaio eventually

dismantled the MCSO unit that had led the raids.5

In Iowa as well, the Martinez litigation helped

clarify limits on local officials’ ability to prosecute

immigrant workers for fraud related to their

unauthorized status. Martha Aracely Martinez was a

long-time resident of Iowa who had lived in the United

States since she was eleven years old. State v.

Martinez, 896 N.W.2d 737, 741 (Iowa 2017). She was

a mother of three U.S. citizen children with another

on the way. Id. She attended public school in the state

and had held several jobs there. Id.

5 See, e.g., “Arizona Sheriff Joe Arpaio Ends Controversial

Workplace

Raids,”

NBC

News

(Dec.

19,

2014),

https://www.nbcnews.com/news/latino/arizona-sheriff-joearpaio-ends-controversial-workplace-raids-n271506.

11

In 2013, the federal government granted Ms.

Martinez a reprieve from deportation and a work

permit through the federal government’s Deferred

Action for Childhood Arrivals (DACA) program. Id. at

741. County officials, however, arrested, detained,

and prosecuted her for having previously used the

documents of a fictitious person to get a job. Id. at 741,

760. There was no indication that Ms. Martinez’s use

of the fictitious documents had caused anyone harm.

Id. at 760.

The Iowa Supreme Court found that state

authorities could not prosecute noncitizens for

submitting false documents to obtain employment

without running afoul of federal law. Justice Wiggins,

specially concurring in the Martinez case explained

that federal officials would have likely “blanch[ed]” at

prosecuting someone like Ms. Martinez who had “in

good faith responded to their invitation to come out of

the shadows for deferred action.” Id. at 757. And yet,

Iowa went ahead.

The Puente and Martinez cases illustrate the type

of state level activity the Court would be inviting if it

were to adopt the State’s position in the instant case.

If the Court were to find for the State, then the types

of challenges that were brought in Arizona and Iowa

would not be possible in the future. Local

policymakers would have free reign to adopt a

patchwork of schemes, each with their own

“calibration of force,” Crosby v. Nat’l Foreign Trade

Council, 530 U.S. 363, 380 (2000),across the 50 states.

12

II.

THE ARIZONA AND IOWA

EXPERIENCES SHOW WHY THE

COURT SHOULD FIND STATE

PROSECUTIONS OF IMMIGRANTS

FOR USING A FALSE IDENTITY TO

WORK PREEMPTED BY FEDERAL

LAW

In staking out its position, the State fixates on a

single provision of federal law—8 U.S.C.

§_1324a(b)(5)—ignoring the broader preemptive

scheme it is a part of.6 But IRCA’s text, purpose and

structure all point toward a unitary, comprehensive

scheme for regulating fraud on the employment

verification system. A faithful application of the

Court’s settled preemption precedents instructs that

Congress has fully occupied the field of regulating

fraud to establish federal eligibility to work.

6 Notably, even the State’s interpretation of 8 U.S.C.

§_1324a(b)(5) is unreasonably narrow. The State suggests that

the only documents subject to the use prohibition are the I-9 form

and its attachments. But as the district court concluded on

remand in Puente Ariz. v. Arpaio, it must also preclude the use

of other documents employees submit in the employment

verification process, such as driver’s licenses and Social Security

cards, whether they are attached to the I-9 or not. No. CV-1401356-PHX-DGC, 2017 WL 1133012, at *7-*8 (D. Ariz. Mar. 27,

2017). Moreover, the term “use” means more than just the

affirmative introduction of a document in a criminal prosecution;

it means any use, including the use of a document as an

investigative lead. See id. at *8 (noting that “the ordinary

meaning of the term ‘use’ is ‘to employ or to derive service from’”)

(internal citation omitted). The State focuses exclusively on the

Ninth Circuit Court of Appeals decision in Puente, see Pet. Br. at

26, ignoring the subsequent history in the case.

13

Furthermore, the experiences in Arizona and

Iowa confirm that that state efforts to punish a

noncitizen for false statements inextricably tied to

establishing such employment eligibility “‘stand[] as

an obstacle to the accomplishment and execution of the

full purposes and objectives of Congress.’” Arizona, 567

U.S. at 399-400 (quoting Hines v. Davidowitz, 312 U.S.

52, 67 (1941)). The State’s prosecution of Respondents

is conflict preempted.

A. The State’s Prosecutions

Impermissibly Trench on a Field

Already Fully Occupied by

Congress

Over thirty years ago, Congress made “combating

the employment of [undocumented immigrants] . . .

central to the policy of immigration law.” Hoffman

Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 147

(2002) (internal quotation omitted). It enacted IRCA, a

“comprehensive” and “balanced” framework to

regulate the employment of noncitizens. See Arizona,

567 U.S. at 404, 406.

“IRCA is a carefully crafted political compromise”

that represents the result of considered deliberations

about how to reconcile the sometimes competing

objectives of discouraging unlawful employment with

the protection of workers who may be adversely

affected. Nat'l Ctr. for Immigrants’ Rights, 913 F.2d

1350, 1366 (9th Cir. 1990), rev'd on other grounds, 502

U.S. 183; see also Statement of President Reagan Upon

Signing S. 1200, Nov. 10, 1986, reprinted in 1986

U.S.C.C.A.N. 5856-1, 5856-1; 8 U.S.C. § 1324b

14

(prohibiting unfair immigration-related employment

practices). Key to IRCA’s structure was a view that

undocumented workers should not be treated as

severely as the employers that hire them. For

example, Congress chose to establish both civil and

criminal penalties for employers who knowingly

employ authorized noncitizen workers. See Arizona,

567 U.S. at 404 (citing 8 U.S.C. § 1324a(e)(4), (f); 8

C.F.R. § 174a.10). However, “Congress made a

deliberate choice not to impose criminal penalties on

aliens who seek, or engage in, unauthorized

employment.”

Id. IRCA “reflects a considered

judgment that making criminals out of aliens engaged

in unauthorized work—aliens who already face the

possibility of employer exploitation because of their

removable status—would be inconsistent with federal

policy and objectives.” Id. at 405.

In establishing the scheme for verification of

prospective employees’ work status, Congress did not

leave law enforcement authorities without tools to

address fraud that it anticipated individuals might

engage in. See 132 Cong. Rec. S16,879–01 (1986)

(statement of Sen. Simpson, bill co-sponsor)

(legislators “paid close attention to” the issue of

document fraud and “provide[d] for this reality”). The

tools that Congress provided officials were flexible,

detailed and diverse. Over time, they have come to

include a range of civil, criminal, and immigrationrelated penalties. See 8 U.S.C. §§_1324c(a)(1)-(4),

1324c(d) (allowing an administrative law judge to

impose civil penalties, including a fine, for fraud in the

employment verification process); 18 U.S.C. §§_1546b,

1324a(b)(5) (identifying other federal criminal

statutes that can be applied to the same); 8 U.S.C.

15

§§_1182(a)(6)(C)(i), 1227(a)(3)(B)(iii), (C) (establishing

immigration consequences for similar conduct).

Critically, though, Congress placed these tools in

the hands of a single sovereign—the federal

government. See supra. The system Congress created

was designed to be a “single[,] integrated and allembracing” one, intended to work more broadly with

IRCA as a “harmonious whole.” Arizona, 567 U.S. at

400-01 (quoting Hines, 312 U.S. at 72, 74).

Furthermore, it was clear Congress was concerned

that the new system might be appropriated and used

against workers in ways beyond those intended by

IRCA. See, e.g., H.R. Rep. 99-682(I) (1986) at 8-9

(discussing desire to avoid a situation where

“verification information could create a ‘paper trail’”

used to “apprehend[] undocumented aliens”).

Congress enacted provisions to ensure, as this Court

has noted, “any information employees submit to

indicate their work status ‘may not be used’ for

purposes other than prosecution under specified

federal criminal statutes for fraud, perjury, and

related conduct.” Arizona, 567 U.S. at 405 (emphasis

added) (citing 8 U.S.C. § 1324a(b)(5), (d)(2)(F)-(G)).7

Thus, while Congress provided federal officials

with a robust range of tools to accomplish the

objectives embodied in IRCA, it also set limits on how

the system should otherwise be used. All of these are

7 See also 8 U.S.C. §§ 1324a(b)(4) (restricting the copying and

retention of documents), 1324a(d)(2)(C) (restricting access to

personal information utilized by the employment verification

system).

16

indications that Congress created “a framework of

regulation so pervasive . . . that it left no room for

states to supplement it.” Id. at 399 (quoting Rice v.

Santa Fe Elevator Corp., 331 U.S. 218 (1947)).

These are the preemption principles that drove the

Iowa Supreme Court to find the state’s prosecution of

Ms. Martinez impermissibly trenched on a field

already fully occupied by Congress. The court agreed

that Congress had occupied the field of regulating

fraud in relation to the “unauthorized employment of

aliens.”

Martinez, 896 N.W.2d at 753, 755-56

(comparing the case to other instances of states

attempting to regulate immigration-related identity

fraud, citing to United States v. South Carolina, 720

F.3d 518 (4th Cir. 2013) and Arizona, 567 U.S. at 40001).8 In such an instance, the court explained, “even

complementary state regulation is impermissible.” Id.

at 756 (quoting Arizona, 567 U.S. at 401). It then

proceeded to strike down a state forgery statute on its

face, id. at 754, and find Iowa’s use of its identity theft

8 The State makes much of the fact that this Court previously

applied a conflict (rather than field) preemption analysis to

invalidate Arizona’s law making it a crime for noncitizens to seek

or perform work without authorization. See, e.g., Pet. Br. at 3940 (discussing Arizona, 567 U.S. at 403). But that is hardly

remarkable. Congress specifically declined to impose criminal

penalties on undocumented immigrants for unauthorized work.

See Arizona, 567 U.S. at 403. It makes sense to apply a conflict

preemption analysis where a state decides to impose a sanction

where “no counterpart exists” in federal law. Id. (The Court’s

analysis otherwise resembled that of field preemption.) Where,

however, as here, Congress has regulated affirmatively and

extensively in a specific area, field preemption is more apt to

apply. See Arizona, 567 U.S. at 400-02 (discussing preemptive

effect of federal alien registration scheme).

17

law preempted as applied9 to a noncitizen who used a

false identity to engage in unauthorized work, id. at

755-56.

B. State Efforts to Punish Immigrants

for Using a False Identity to Work

Conflict with the Federal Scheme

State action can be also conflict preempted if it

“‘stands as an obstacle to the accomplishment and

execution of the full purposes and objectives of

Congress.’” Arizona, 567 U.S. at 399-400 (quoting

Hines, 312 U.S. at 67). There are several reasons why

state prosecutions of undocumented workers for the

type of fraud Respondents engaged in here interfere

with federal law.

First, as this Court recognized in Arizona, where

the federal government has reserved an area for itself,

a state’s ability to “bring criminal charges against

individuals for violating federal law even in

circumstances where federal officials in charge of the

comprehensive scheme [do not]” detracts from, and

creates a conflict with, federal law. 567 U.S. at 402-03;

see also Valle del Sol Inc. v. Whiting, 732 F.3d 1006,

1027 (9th Cir. 2013); South Carolina, 720 F.3d at 53132 (noting danger of “improperly placing in the hands

of state officials the nation’s immigration policy, and

strip[ping] federal officials of the authority and

discretion necessary” to carry out that policy).

9 A state statute may be preempted in some, but not all, of its

applications. See Hillman v. Maretta, 569 U.S. 483, 485, 494

(2013) (holding that Virginia’s rules for regulating the

distribution of death benefits preempted on an as-applied basis).

18

Federal discretion and federal control make it

possible for federal officials to pursue a “delicate

balance of statutory objectives.” Buckman Co. v.

Plaintiffs’ Legal Comm., 531 U.S. 341, 348-49 (2001)

(finding preemption to be necessary to allow the FDA

to “pursue[] difficult (and often competing)” goals). As

discussed supra, Congress was centrally concerned

with striking a balance in IRCA between discouraging

unlawful employment and protecting workers from

further exploitation.

State prosecutions thwart the delicate balance

struck by IRCA. They permit local officials to impose

their own, supplemental sanction for conduct already

regulated by federal law, and to pursue charges

against individuals for uniquely federal conduct that

federal authorities would not bring. For example,

when Congress created the system for employment

verification in IRCA, it also provided for the

legalization of millions of immigrants who had been

residing in the United States. Muzaffar Chishti, Doris

Meissner & Claire Bergeron, At Its 25th Anniversary,

IRCA’s Legacy Lives On, Migration Policy Institute

(Nov. 16, 2011), https://www.migrationpolicy.org/

article/its-25th-anniversary-ircas-legacy-lives.

Beneficiaries of legalization would have work

authorization going forward, but many had likely

used a false Social Security number to work in the

past. Similarly, Ms. Martinez was granted a work

permit through the DACA program in 2013, but she

had used fictitious documents in the past. It would

make no sense to criminally prosecute immigrants

that the federal government is actively trying to

welcome into American society, and indeed, Congress

19

did not contemplate that result. See, e.g., 42 U.S.C.

408(e). But that is what Kansas is proposing it ought

to be able to do.

The United States recognized the potential for

these such clashes when it submitted an amicus brief

to the Ninth Circuit Court of Appeals in the Puente

case explaining that “[a] critical feature of the

comprehensive federal scheme [for regulating fraud to

demonstrate work authorization] is the discretion that

it affords federal officials.” Amicus Brief of the United

States (“U.S. Puente Br.”), Puente Ariz. v. Arpaio, No.

15-15211, 2016 WL 1181917, at *18 (9th Cir. filed

Mar. 25, 2016). It noted the variety of federal interests

that would be compromised if states were free to

conduct their own “parallel . . . prosecutions” of

workers, from guarding against unfair labor practices

to the conduct of foreign affairs. Id. at *19-*20; see also

Arizona, 567 U.S at 395; Martinez, 896 N.W.2d at 756757 (detailing interests). The government also

explained that federal officials may “rely on foreign

nationals, including [undocumented workers], to build

criminal cases[.]” Id. at *18-*19. Preemption, it

argued, was necessary to avoid the possibility of state

actions that might be directly at odds with the

exercise of federal “prosecutorial power[] and . . .

discretion.” Valle del Sol, 732 F.3d at 1027.

Additionally, state prosecutions subject workers to

a different (and harsher) sanctions regime than that

which exists under federal law. This “inconsistency

[in] sanctions” between state and federal law, the

Court has explained, undermines the “congressional

calibration of force” and is another basis for finding

20

conflict preemption. Crosby, 530 U.S. at 380; see also

Arizona, 567 U.S. at 403, 406.

As discussed supra, federal officials can, if they

choose to take any type of enforcement action against

a worker at all, select from among a range of

sanctions, including civil, criminal and administrative

sanctions. State prosecutors, on the other hand, can

only pursue criminal charges. The “variety of

enforcement options” and “flexibility” built into the

federal “statutory and regulatory framework” are

essential to carrying out Congress’s intent. See

Buckman, 531 U.S. at 348-49 (finding that these

features were what allowed the FDA to “make a

measured response to suspected fraud upon the

Administration”). Specifically, federal officials’ ability

to pursue non-criminal sanctions is one important

way by which the government is able to carry forth

IRCA’s commitment to treat workers less severely

than the employers that hire them. See Andorra

Bruno, Cong. Research Serv., RL 40002, ImmigrationRelated

Worksite

Enforcement:

Performance

Measures

2,

5-6

(2015),

https://fas.org/sgp/crs/homesec/R40002.pdf

(comparing administrative charges brought over time

by federal officials versus criminal charges brought,

and noting that ICE has prioritized the prosecution of

employers who engage in egregious violations and

worker exploitation).

If states were permitted to bring their own

prosecutions against immigrant workers, there would

be no requirement that officials prioritize the

investigation of employers and no ability for them to

21

apply administrative sanctions in lieu of criminal ones

on workers.

In Maricopa County, for example, prosecutors only

brought four actions against employers, in contrast to

the many hundreds they brought against workers. Id.

¶ 58. Furthermore, while county officials understood

their activities to be directed at immigration, they also

openly refused to take into account the types of

circumstances that might animate immigration policy

decisions at the federal level. See id. ¶_150 (MCAO

never checked whether an undocumented worker had

been subjected to labor violations before deciding

whether or not to proceed with a prosecution). Arpaio

specifically asserted that he had state-authority to go

forward with enforcement actions even under

circumstances where federal immigration authorities

would not. See, e.g., id. ¶¶ 91 (describing a 2009 raid

that MCSO conducted in defiance of then-DHS

Secretary Janet Napolitano’s renewed effort to focus

on employers instead of “employees who are in the

country illegally”), 137 (describing instance in which

Sheriff refused to allow two immigrants encountered

during a worksite raid “[back] into the streets” after

ICE had declined to take them).

Amici have serious concerns that a ruling for the

State in this case would open the door to the arrest

and prosecution of particularly vulnerable workers

that the federal government has expressed should not

be subject to deportation, let alone criminal

prosecution for document fraud. See Arizona, 567 U.S.

at 408 (invalidating provision of Arizona law that

would have resulted in the unnecessary harassment

of immigrants who federal officials determine should

22

not be removed). These include trafficking survivors,

which Congress has suggested should “not be

inappropriately incarcerated, fined or otherwise

penalized” for acts committed as a result of being

trafficked, “such as using false documents,” Pub. L.

106-386 § 102(b)(19) (codified at 22 U.S.C.

§_7101(b)(19)), and survivors of other crimes, such as

domestic violence and workplace-related crimes, who

are otherwise eligible for special visas designed to

encourage their cooperation with law enforcement, see

generally 8 U.S.C. §§ 1101(a)(15)(T), 1101(a)(15)(U); 8

C.F.R. § 214.14.

None of the federal policy judgments about the

protection of vulnerable workers would bind local

authorities in their decisions about who to prosecute

under state law for employment-related fraud.

Indeed, for many years, the U.S. Department of Labor

has for many years had a Memorandum of

Understanding (MOU) with the Department of

Homeland Security (DHS) to help ensure that

enforcement action is not taken against workers who

may be victims of ongoing labor violations. See

Revised Memorandum of Understanding between the

Departments of Homeland Security and Labor

Concerning Enforcement Activities at Worksites (Dec.

7, 2011), https://www.dol.gov/asp/media/reports/dhsdol-mou.pdf. In the Puente litigation, plaintiffs

learned that despite having known about possible

labor violations taking place at a business, officials

still went ahead with a raid. Puente Pls.’ SOF ¶¶ 15355. Workers reported physical and verbal abuse,

racial discrimination and wage and overtime

violations. Id. ¶ 154. One Puente member, Valentin

Villanueva Fernandez, recalled the manager

23

threatening to call the sheriff to come arrest them if

workers didn’t do as they were told. Id.

The conflict with federal law arises even if state

prosecutions do not undermine federal policy in every

case and even if there is no intentional design to target

immigrants. As this Court has made clear, “[s]tatelaw-fraud-on-the-FDA claims inevitably conflict” with

the federal scheme because of the possibility that state

prosecutions could be unaligned with federal

priorities. Buckman, 531 U.S. at 350 (emphasis

added).

So

too

with

state-law-fraud-on-theemployment-verification-system claims. It matters

not that federal immigration officials were involved in

the investigation of one Respondent in this case, see

Pet. Br. at 12, because nothing would prevent local

officials from next prosecuting someone that federal

authorities have determined should not be punished,

or punished in the same way.

Finally, the State argues that it may prosecute

Respondents in this case without affecting federal

interests because prosecutors relied on documents

other than the I-9 form. See, e.g., id. at 47-48. But the

reality is that there will almost always be other

routine employment-related forms that workers

complete using the same identity information—for

example, the same Social Security number—that they

use to complete the I-9 form. A rule that preempts only

the use of the I-9 form but not other forms workers

complete in the same transaction would allow local

officials to be able to nullify federal decisions in nearly

every case. See United States v. Alabama, 691 F.3d

1269, 1296 (11th Cir. 2012) (noting that this Court has

“instructed that a preemption analysis must

24

contemplate the practical result of [a] state law, not

just the means that a state utilizes to accomplish the

goal”). From the perspective of the workers, they are

being prosecuted for the same fraud, whether it is on

the I-9 or W-4 or K-4 form.10 Even the United States

previously called this “the very same fraud.” U.S.

Puente Br., 2016 WL 1181917, at *15. State

prosecutions for such fraud do just as much damage to

federal interests as prosecutions using the I-9 form.

Id. at *14-*15, *21.

Indeed, in carrying out their campaign of worksite

raids, Maricopa County officials routinely seized I-9

forms and regularly used them as the basis for charges

against workers. See, e.g., Puente Pls.’ SOF ¶¶ 80, 82.

This makes sense, since state lawmakers’ aim had

been to penalize precisely immigrants’ use of a false

identity or Social Security number to get a job in

Arizona. Eventually, after local criminal defense

attorneys began to point out that use of the I-9 form

was prohibited under federal law, prosecutors

removed any mention of the I-9 from charging

documents and stopped relying on it to establish the

10 There is no indication in any of these cases that workers

used a consistent identity on the W-4 or K-4 for any reason other

than to overcome their unauthorized status. For example, there

is no evidence they were trying to gain a tax benefit. The State

also mischaracterizes the Kansas Supreme Court decision as

granting noncitizens “favored status” due to their “immunity

from state prosecution”. Pet. Br. at 50. Undocumented workers,

by virtue of their status, must use a false identity if they are to

engage in any type of formal employment. See Annie Lai,

Confronting Proxy Criminalization, 92 DENV. L. REV. 879, 903-04

(2015). In that respect, they are not similarly situated to other

workers. The fraud they are engaging in is a unique byproduct of

federal law.

25

elements of a crime. Id. ¶ 83. But in all other respects,

the operations (and investigations) remained

unchanged.

The United States has submitted an amicus brief

in this case arguing that the Kansas prosecutions are

not preempted. Its position in this case is opposite to

the view it previously expressed in 2016. Rather than

undermine amici’s argument, however, the United

States’ views in this case simply suggest that this

administration has different priorities, not that the

federal government shouldn’t have the power to

determine priorities when it comes to worksite

enforcement. After all, the power to determine

priorities a prerequisite for carrying out enforcement

in a manner that fulfills the “‘full purposes and

objectives of Congress.’” Arizona, 567 U.S. at 399-400

(quoting Hines, 312 U.S. at 67).11

III.

A RULING FOR RESPONDENTS

WOULD NOT UNDULY IMPEDE

STATES’ ABILITY TO PURSUE

IDENTITY THEFT INVESTIGATIONS

AND PROSECUTIONS

The State hyperbolically claims that an affirmance

would thwart its ability to prosecute other fraudrelated offenses, as well as numerous other offenses.

Pet. Br. at 29-31. Amici’s experiences in Iowa and

11 The State relies on Chamber of Commerce v. Whiting, 563

U.S. 582 (2011) in various places, but that case is inapposite.

Whiting dealt with express savings clause for employer sanctions

in 8 U.S.C. § 1324a. There is no savings clause allowing states to

impose their own penalties on workers for fraud related to

unauthorized work.

26

Arizona, however, prove this is not the case. Indeed,

preemption of state action in this area may help to

ensure that state identity theft laws are not diluted—

and that state and local law enforcement resources

are not diverted—for immigration purposes.

In Iowa, data provided by the Iowa Division of

Criminal & Juvenile Justice Planning in response to

an ACLU of Iowa information request shows that

charges and convictions under Iowa’s identity theft

statute, Iowa Code § 715A.8, actually increased

slightly in the year following the Martinez decision

(i.e., 2018) compared to the year prior to the decision

(i.e., 2016):

Source: E-mail with attached data file from Sara Fineran,

Iowa Division of Criminal & Juvenile Justice Planning to

Phil Brown, ACLU of Iowa dated June 25, 2019.

Iowa officials remain free to exercise their

traditional police powers to prosecute fraud, theft and

other crimes without regard to the immigration status

27

or nationality of a defendant. They can also prosecute

a defendant for fraudulently providing a false name,

Social Security number, or other identifying

information in a credit card or housing application, for

example. See Martinez, 896 N.W.2d at 755 (explaining

that the State was not preempted from prosecuting

“identity theft to defraud a bank,” even by a

noncitizen). The only thing they cannot do is bring

prosecutions against noncitizens for fraud to engage

in unauthorized work.

Rather of impeding efforts to investigate and

prosecute fraud-related offenses, excluding states

from the business of immigration-related prosecutions

may allow local officials to better focus their efforts on

the more classic forms of identity theft. In the Puente

litigation, expert analysis completed by Professor

Jennifer Earl of the University of Arizona showed that

as Maricopa County began prosecuting more

employment-related identity theft and forgery cases

against undocumented immigrants in the years after

the passage of LAWA, its prosecution of other forgery

and identity theft cases fell. Puente Pls.’ SOF ¶ 76; see

also Initial Expert Report of Jennifer Earl, Puente

Ariz. v. Arpaio, No. CV-14-01356-PHX-DGC, Doc. 52021, at 42-44 ((D. Ariz. filed July 1, 2017) (reporting

that cases brought under Ariz. Rev. Stat. §§_13-2002,

13-2008 and 13-2009 against documented defendants,

as well as documented defendants together with

defendants for which immigration status was

unknown, fell in absolute numbers between 2007 and

2010). A bright line between local law enforcement

and immigration may also encourage some immigrant

victims of crime to come forward and report their

experiences to law enforcement. See generally Nik

28

Theodore, Insecure Communities: Latino Perceptions

of Police Involvement in Immigration Enforcement

(University

of

Illinois

at

Chicago,

2013),

https://www.policylink.org/sites/

default/files/INSECURE_COMMUNITIES_REPORT

_FINAL.PDF.

In short, the State’s claims of law enforcement

catastrophe are unfounded.

CONCLUSION

Preemption has and continues to serve as an

important check on local law enforcement in the

immigration arena. For all the reasons above, amici

urge this Court to find the State’s prosecutions of the

Respondents in this case preempted.

August 13, 2019

Respectfully submitted,

BRAM T.B. ELIAS

UNIVERSITY OF IOWA

COLLEGE OF LAW

CLINICAL LAW

PROGRAMS

386 Boyd Law Building

Iowa City, Iowa 52242

(319) 335-9023

ANNE LAI

Counsel of Record

MÓNICA RAMÍREZ

ALMADANI

UNIVERSITY OF

CALIFORNIA, IRVINE

SCHOOL OF LAW

IMMIGRANT RIGHTS

CLINIC

JOHN A. HATHAWAY

401 E. Peltason Dr.,

VONDRA & MALOTT, PLC

Ste. 3500

1934 Boyrum St.

Irvine, CA 92616-5479

Iowa City, IA 52240

(949) 824-9894

(319) 358-1900

alai@law.uci.edu