Kansas Supreme Court blocks state prosecution of undocumented immigrants

photo by: Associated Press

Kansas Supreme Court Justices take their seats to hear oral arguments in this file photo from Dec. 10, 2015.

? The Kansas Supreme Court handed down three rulings Friday that could make it more difficult for the state of Kansas to prosecute undocumented immigrants who use stolen Social Security numbers to land jobs in the state.

In all three cases, the high court ruled 5-2 that charges of identity theft and making a false writing against those individuals were pre-empted by federal immigration law.

The cases all originated in Johnson County. They involved Ramiro Garcia, who was employed at Bonefish Grill in Leawood; Guadalupe Ochoa-Lara, who worked at a Longbranch Steakhouse, and Donaldo Morales, who had applied for a job at a Jose Pepper’s restaurant in Johnson County.

The cases against Garcia and Morales were investigated by the Social Security Administration’s Office of Inspector General. The case against Ochoa-Lara was investigated by the Overland Park Police Department and U.S. Immigration and Customs Enforcement.

All three were convicted in Johnson County District Court on charges of identity theft for using stolen Social Security numbers and other documents to obtain employment, and making a false writing for filling out I-9 forms claiming they were eligible to work in the United States.

All three cases were initially tried by Johnson County District Judge Kevin P. Moriarty, and all three were affirmed by the Kansas Court of Appeals.

In a series of decisions Friday written by Justice Carol Beier, the Kansas Supreme Court reversed all three of those decisions, saying that under a specific federal law dealing with unlawful employment of aliens, “States are prohibited from using the I-9, and any information contained within the I-9 as the basis for any state law identity theft prosecution of an alien who uses another’s Social Security information in an I-9.”

The decision went on to say that it didn’t matter that the same information was also contained in a federal tax form W-4, or in the state’s K-4 tax form because that does not alter the fact that it was also in the I-9 form.

In addition to Beier, the opinions were signed by Chief Justice Lawton Nuss, Justices Marla Luckert and Eric Rosen, and Senior Judge Michael J. Malone, who was assigned to hear the cases in place of Justice Lee Johnson who did not participate.

Justices Dan Biles and Caleb Stegall issued separate dissenting opinions, saying they did not believe the federal statute expressly pre-empts prosecution under state law because putting the false information on state and federal tax forms were separate and distinct acts from putting the same information on an I-9 form.

Biles noted that earlier this year, the Iowa Supreme Court faced a similar case and came to the exact opposite conclusion as the majority opinion of the Kansas Supreme Court.

In a statement released through his spokeswoman, Johnson County District Attorney Stephen Howe said he was disappointed in the decision, but that he would review the court’s analysis and would have more comment Monday.

Kansas Attorney General Derek Schmidt, whose office helped in the appeal, also said in an email statement that he planned to review the decision, “to assess what options, if any, the State may pursue.”

But Kansas Secretary of State Kris Kobach, who has built a national reputation crusading against illegal immigration, issued a statement blasting the decision.

“Unfortunately, these decisions now mean that illegal aliens who steal social security numbers and work in Kansas cannot be prosecuted,” Kobach said. “This is yet another respect in which Kansas is becoming the sanctuary state of the Midwest.”