United States District Court, D. Arizona
G. Campbell United States District Judge.
case involves the constitutionality of two Arizona statutes
that criminalize the act of identity theft when done with the
intent to obtain or continue employment, and a general
Arizona statute that makes it a crime to commit forgery.
Plaintiffs argue that these three statutes are preempted when
applied to unauthorized aliens who commit fraud in the
federal employment verification process or to show
authorization to work under federal immigration law.
Plaintiffs also claim that the two identity theft statutes
were enacted with the purpose of discriminating against
unauthorized aliens and are facially invalid under the Equal
Protection Clause of the Fourteenth Amendment. Plaintiffs
seek declaratory and injunctive relief.
Parties have filed motions for summary judgment, and the
Court heard oral arguments on October 13, 2016. For the
reasons set forth below, the Court will grant in part
Plaintiffs' motion for summary judgment on the preemption
claim, grant in part Defendants' motion for summary
judgment on the preemption claim, and grant Defendants'
motion for summary judgment on the equal protection claim.
purposes of this order, the Court will refer to those who are
in the United States without legal authorization as
“unauthorized aliens.” Plaintiffs consist of two
unauthorized aliens who have been convicted of identity theft
felonies in Arizona for using false names to obtain
employment; Puente, an organization formed to protect and
promote the interests of unauthorized aliens and their
families; and several residents of Maricopa County who object
to the use of their tax dollars to prosecute unauthorized
aliens for identity theft or forgery in the employment
context. Defendants are the State of Arizona, Maricopa
County, Maricopa County Sheriff Joseph Arpaio, and Maricopa
County Attorney Bill Montgomery.
Court will begin by describing relevant federal laws and
regulations on the employment of unauthorized aliens, and
then will describe the Arizona laws challenged by Plaintiffs
and the prior proceedings in this case.
Federal Regulation of Unauthorized Alien Employment.
1986, Congress passed the Immigration Reform and Control Act
(“IRCA”). Pub. L. No. 99-603 (S. 1200). Among
other provisions, the IRCA prohibited the employment of
unauthorized aliens and created a national system for
verifying whether prospective employees were authorized to
work in this Country. Id. § 101. The new system
required employers to verify the identity and work
authorization of persons they intend to hire. Id.
Congress instructed the Attorney General to create a form on
which an employer would attest, under penalty of perjury,
that it had verified that an employee was authorized to work.
Id. The prospective employee was also required to
swear that he or she is a United States citizen or an alien
lawfully authorized to obtain employment in the United
the passage of the IRCA, the Attorney General enacted
regulations to implement the employment verification system.
8 C.F.R. § 274a.2. These regulations create the Form I-9
to be used in the verification process. Section 1 of the Form
I-9 requires the employee to provide his or her name,
address, date of birth, and social security number, and to
swear under penalty of perjury that he or she is a citizen or
national of the United States, a lawful permanent resident
alien, or an alien authorized to work in the United States.
In section 2, the employer identifies documents reviewed by
the employer to verify the employee's identity and work
authorization. The regulations identify specific documents,
referred to as “List A” documents, that can be
used to show both identity and authorization to work, such as
U.S. passports, permanent resident alien cards, or federal
employment authorization documents. “List B”
documents can be used to show identity, and include items
such as driver's licenses or state, federal, or school ID
cards. “List C” documents can be used to show
employment authorization, and include social security cards
and other specific federally- or tribally-issued documents. 8
C.F.R. § 274a.2(b)(1)(v). A prospective employee must
show the employer either a List A document or a combination
of List B and List C documents.
the employer verifies the employee's identity and
authorization to work and the Form I-9 is completed, the
employer is required to maintain the form and any copies it
made of documents provided by the employee. The Form I-9 is
not submitted to the government. The intent is for employees
to prove their identity and authorization to work, and for
employers to confirm these facts and then retain a copy of
the Form I-9 as proof the process was
IRCA established criminal penalties for employers who fail to
follow the Form I-9 process. Pub. L. No. 99-603 (S 1200)
§ 101 (codified at 8 U.S.C. § 1324a(f)). It also
imposed criminal penalties on persons who knowingly forge,
counterfeit, or alter any of the documents prescribed for
proof of identity or employment authorization. Id.
§ 103 (codified at 18 U.S.C. § 1546). The IRCA also
imposed criminal penalties on persons who knowingly use a
false identification document to satisfy any requirement of
the I-9 process. Id.
years after the enactment of the IRCA, Congress passed the
Immigration Act of 1990. Pub. L. 101-649. This statute added
a range of civil penalties for fraud committed by employees
in the Form I-9 process. Id. (codified at 8 U.S.C.
§ 1324c). Congress has also enacted various
immigration penalties for fraud committed to satisfy the
federal employment verification system. See 8 U.S.C.
§§ 1182(a)(6)(c), 1227(a)(3), 1255(c). These
criminal, civil, and immigration provisions will be discussed
in greater detail below.
case concerns three Arizona laws: two identity theft statutes
passed in 1996 and 2005, and then amended in 2007 and 2008 to
apply specifically to the use of false identities to obtain
employment, and a general forgery statute passed in 1977. As
the nature, history, and application of these laws are
important to the issues addressed below, the Court will
describe them in some detail.
1996, Arizona became the first state in the country to pass
legislation making identity theft a felony. S. Rep. No.
105-274, at 6 (1998). This statute, now codified at A.R.S.
§ 13-2008, made it a crime to “knowingly take
the name, birth date or social security number of another
person, without the consent of that person, with the intent
to obtain or use the other person's identity for any
unlawful purpose or to cause financial loss to the other
person.” 1996 Ariz. Legis. Serv. Ch. 205 (H.B. 2090)
(West). The statute has been amended several times to expand
the definition of identity theft. See,
e.g., 2000 Ariz. Legis. Serv. Ch. 189 (H.B. 2428)
(West) (broadening the statute to cover “any personal
identifying information” of another person).
2005, Arizona passed legislation creating a new crime of
aggravated identity theft. 2005 Ariz. Legis. Serv. Ch. 190
(S.B. 1058) (West). This statute, codified at A.R.S. §
13-2009, designated identity theft as aggravated if it causes
another to suffer an economic loss of $1, 000 or more, or if
it involves stealing the identities of three or more persons.
claims focus on later amendments to § 13-2008 and §
13-2009 that added specific language covering identity theft
committed to obtain or continue employment. The first
amendment was passed in 2007 as part of H.B. 2779, known as
the “Legal Arizona Workers Act.” 2007 Ariz.
Legis. Serv. Ch. 279 (H.B. 2779) (West). H.B. 2779 created a
new statute - A.R.S. § 13-212 - which prohibits
employers from hiring unauthorized aliens and threatens the
suspension of their business licenses if they fail to
comply. H.B. 2779 also amended the aggravated
identity theft statute that had been passed in 2005. Under
the amended statute, a person commits aggravated identity
theft by knowingly taking the identity of “[a]nother
person, including a real or fictitious person, with the
intent to obtain employment.” A.R.S. §
2008, Arizona passed H.B. 2745, titled “Employment of
Unauthorized Aliens.” 2008 Ariz. Legis. Serv. Ch. 152
(H.B. 2745) (West). The bill amended and created several
statutes relating to the employment of unauthorized aliens.
The bill also amended § 13-2008(A) - originally passed
in 1996 - to make clear that identity theft is a crime when
committed “with the intent to obtain or continue
the remainder of this order, the Court will refer to the 2007
and 2008 amendments - which are the legislative acts
specifically challenged by Plaintiffs - simply as “the
identity theft statutes.”
Court and the Ninth Circuit have recognized in previous
rulings in this case that the 2007-2008 legislative history
of the identity theft statutes reflects “an intent on
the part of Arizona legislators to prevent unauthorized
aliens from coming to and remaining in the state.”
Puente Arizona v. Arpaio, 821 F.3d 1098, 1102 (9th
Cir. 2016); Puente Arizona v. Arpaio, 76 F.Supp.3d
833, 855 (D. Ariz. 2015). Plaintiffs identify numerous
statements by Arizona lawmakers expressing an intent to
target unauthorized aliens and affect immigration with both
bills. Doc. 621 at 4-8; Doc. 538 at 17-18; Doc. 575 at 16-21.
For example, one of H.B. 2779's sponsors, Representative
Barnes, stated that the bill was “meant to address the
illegal immigration problem.” Doc. 575 at 16. Senator
Pearce, another sponsor of both bills, stated during a
hearing on H.B. 2779 that Arizona needed to do more to stop
illegal immigration and that “attrition starts through
enforcement.” Doc. 621 at 5. Representatives
Burns and O'Halloran expressed support for the bills
because they would take a tough stance on immigration and
ensure that unauthorized aliens would not become citizens.
Doc. 575 at 18. When signing H.B. 2779 into law, Governor
Napolitano noted that a “state like Arizona [has] no
choice but to take strong action to discourage the further
flow of illegal immigration through our borders.” 2007
Ariz. Legis. Serv. Ch. 279 (H.B. 2779) (West). In addition,
H.B. 2779 and H.B. 2745 were among dozens of Arizona bills
introduced during the same time period which focused on
unauthorized aliens. Doc. 575 at 19-20.
do not offer any contrary legislative history, but instead
argue that the statements cited by Plaintiffs are immaterial
to their claims (Doc. 573 at 6-9), and that “state
legislative intent is irrelevant to the issue of
preemption.” Doc. 510 at 16. Defendants also argue that
because H.B. 2779 and H.B. 2745 contain multiple provisions,
the legislative history cited by Plaintiffs cannot be linked
specifically to the identity theft statutes. Doc. 604 at 11.
The Court has already rejected this argument, finding that
the 2007 and 2008 amendments were intended - at least in part
- to target unauthorized aliens and influence illegal
immigration. Puente, 76 F.Supp.3d at 856-57.
addition to challenging the identity theft statutes,
Plaintiffs' amended complaint includes a preemption
challenge to the general forgery statute, A.R.S. §
13-2002, as applied to unauthorized aliens seeking
employment. Doc. 191. This statute was originally enacted in
1977, and provides that a person “commits forgery if,
with intent to defraud, ” the person “[o]ffers or
presents, whether accepted or not, a forged instrument or one
that contains false information.” A.R.S. §
13-2002(A)(3). This statute does not specifically mention
employment, but Defendants do not dispute that it has been
applied to unauthorized aliens who commit forgery in the
employment context. Doc. 534 at 19.
History of This Case.
January 5, 2015, this Court preliminarily enjoined
enforcement of the identity theft statutes - §
13-2009(A)(3) and the portion of § 13-2008(A) that
addresses actions committed with the intent to obtain or
continue employment - finding that Plaintiffs were likely to
prevail on their claim that these provisions are facially
preempted under the Supremacy Clause. Puente, 76
F.Supp.3d at 842. The Court relied heavily on the legislative
history of these provisions, finding “a primary purpose
and effect . . . to impose criminal penalties on unauthorized
aliens” and “regulate unauthorized aliens who
seek employment.” Id. at 855. Because Congress
has comprehensively regulated the field of unauthorized alien
employment, the Court concluded that the statutes were likely
invalid under both field and conflict preemption.
Id. at 856-58.
appeal, the Ninth Circuit agreed with the Court's
characterization of the purpose of the identity theft
statutes, but concluded that Plaintiffs' facial
preemption challenge would fail on the merits because the
statutes could also be applied to citizens or lawful resident
aliens and therefore could be enforced “in ways that do
not implicate federal immigration priorities.”
Puente, 821 F.3d at 1108. The Court of Appeals
[T]he identity theft laws are textually neutral - that is,
they apply to unauthorized aliens, authorized aliens, and
U.S. citizens alike. . . . The key point is this: one could
not tell that the identity theft laws undermine federal
immigration policy by looking at the text itself. Only when
studying certain applications of the laws do immigration
Id. at 1105. The court vacated the preliminary
injunction and remanded for consideration of Plaintiffs'
as-applied challenge. Id. at 1110.
Ninth Circuit also held that a presumption against preemption
applies in this case because the challenged identity theft
laws “regulate for the health and safety of the people
of Arizona.” Id. at 1104. “Therefore,
only if Congress's intent to preempt the challenged state
statute is ‘clear and manifest' may we deem the
statute preempted.” Id. More will be said
about this presumption below.
Current Procedural Setting.
parties have completed discovery and filed cross motions for
summary judgment on Plaintiffs' as-applied preemption
claim. Defendants have also moved for summary judgment on
Plaintiffs' equal protection claim, and Defendant
Maricopa County seeks summary judgment on its liability for
the conduct of Sheriff Joseph Arpaio and County Attorney Bill
Montgomery. Docs. 510, 511, 525, 534. After setting forth the
relevant legal standard for summary judgment, the Court will
address preemption, equal protection, and the County's
seeking summary judgment “bears the initial
responsibility of informing the district court of the basis
for its motion, and identifying those portions of [the
record] which it believes demonstrate the absence of a
genuine issue of material fact.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). Summary judgment is
appropriate if the evidence, viewed in the light most
favorable to the nonmoving party, shows “that there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a). Summary judgment is also appropriate against a party
who “fails to make a showing sufficient to establish
the existence of an element essential to that party's
case, and on which that party will bear the burden of proof
at trial.” Celotex, 477 U.S. at 322.
Basic Preemption Principles.
Supremacy Clause provides a clear rule that federal law
‘shall be the supreme Law of the Land; and the Judges
in every State shall be bound thereby, anything in the
Constitution or Laws of any State to the Contrary
notwithstanding.'” Arizona United States,
132 S.Ct. 2492, 2500 (2012) (quoting U.S. Const. art. VI, cl.
2). Under this clause, “Congress has the power to
preempt state law.” Crosby v. Nat'l Foreign
Trade Council, 530 U.S. 363, 372, (2000). In determining
whether Congress has in fact preempted a state law,
“‘the purpose of Congress is the ultimate
touchstone.'” Wyeth v. Levine, 555 U.S.
555, 565 (2009) (quoting Medtronic, Inc. v. Lohr,
518 U.S. 470, 485, (1996)).
preemption doctrine consists of three well-recognized
classes: express, field, and conflict preemption.
Arizona, 132 S.Ct. at 2500-01. Express preemption
occurs when Congress “withdraw[s] specified powers from
the States by enacting a statute containing an express
preemption provision.” Id. (citing
Whiting, 131 S.Ct. at 1974-75). Field preemption
precludes states “from regulating conduct in a field
that Congress, acting within its proper authority, has
determined must be regulated by its exclusive
governance.” Id. at 2501 (citing Gade v.
Nat'l Solid Wastes Mgmt. Ass'n, 505 U.S. 88, 115
(1992)). Conflict preemption occurs “where
‘compliance with both federal and state regulations is
a physical impossibility, ' Florida Lime &
Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43
(1963), and in those instances where the challenged state law
‘stands as an obstacle to the accomplishment and
execution of the full purposes and objectives of Congress,
' Hines [v. Davidowitz ], 312 U.S. [52,
] 67, (1941).” Id.
noted by the Ninth Circuit in this case, the Court begins
with a presumption that application of the identity theft and
forgery statutes to unauthorized aliens is not preempted.
Puente, 821 F.3d at 1104. The Supreme Court has long
held that “courts should assume that ‘the
historic police powers of the States' are not superseded
‘unless that was the clear and manifest purpose of
Congress.'” Arizona v. United States, 132
S.Ct. at 2501 (quoting Rice v. Santa Fe Elevator
Corp., 331 U.S. 218, 230 (1947)); see also
Wyeth, 555 U.S. at 565.
case clearly implicates historic police powers. As already
noted, § 13-2008 was the first identity theft statute
passed by a state in the United States. More than a decade
later, “[b]etween 2006 and 2008, Arizona had the
highest per-capita identity theft rates in the nation, and
one third of all identity theft complaints in the state
involved employment-related fraud.” Puente,
821 F.3d at 1002. Defendants assert, without contradiction
from Plaintiffs, that some 860, 000 identity thefts and 270,
000 cases of personal information theft occur annually in
Arizona. Doc. 584, ¶ 6. Defendants' expert, Dr.
Cohen, found that Arizona residents are 2.5 times more likely
to be victims of identity theft than average Americans, and
that Arizona residents incur between $2.8 and $5.1 billion in
annual costs from identity theft. Id., ¶ 13.
residents against fraud, including fraud committed in the
employment context, plainly falls within the historic police
powers of the State. To overcome the resulting presumption
against preemption, therefore, Plaintiffs must show that
“Congress's intent to preempt the challenged state
statutes is ‘clear and manifest.'”
Puente, 821 F.3d at 1104. In addition, as the
Supreme Court has said, laws within the historic police
powers of the states “must do ‘major damage'
to ‘clear and substantial' federal interests before
the Supremacy Clause will demand that [they] be
overridden[.]” Hillman v. Maretta, 133 S.Ct.
1943, 1950 (2013) (quoting Hisquierdo v. Hisquierdo,
439 U.S. 572, 58 (1979)).
assert that Congress intended to preempt Arizona from
applying its identity theft and forgery statutes to
unauthorized aliens who commit fraud in obtaining employment.
Plaintiffs do not claim that the laws have been applied
unjustly to innocent unauthorized aliens. Rather, they argue
that aliens who actually steal the identity of another to
obtain employment cannot be prosecuted under the Arizona
Ninth Circuit has emphasized, factual findings are very
important in as-applied preemption analysis. Puente,
821 F.3d at 1105. If the as-applied challenge succeeds, the
Arizona identity theft statutes will not be found invalid in
their entirety, but only as applied to employment-related
fraud committed by unauthorized aliens.
Supreme Court has explained that in “assessing the
impact of a state law on the federal scheme, we have refused
to rely solely on the legislature's professed purpose and
have looked as well to the effects of the law.”
Gade, 505 U.S. at 105. The Ninth Circuit also noted
that Arizona's purpose behind the challenged statutes is
relevant but not sufficient to establish preemption.
Puente, 821 F.3d at 1106 n.8. Citing Gade
and similar cases, Defendants suggest that the Court's
as-applied analysis must focus on the practical
effect of the statutes' application. Plaintiffs
disagree, arguing that the court must instead
“determine whether a state or local policy poses an
obstacle to the accomplishment and execution of the full
purposes and objectives of Congress . . . [by] evaluat[ing]
not only its formal terms, but practical
result.” Doc. 606 at 16 (emphasis added). The
Court sees no meaningful distinction between the
“practical effect” and “practical
result” of the statutes' application. By either
name, the Court must determine whether the challenged
application conflicts with a federal scheme enacted by
Congress or intrudes on a field fully occupied by Congress.
The touchstone remains the intent of Congress, but with the
presumption against preemption firmly in mind.
Maricopa County Attorney's Office.
2005 and 2015, a high majority of those prosecuted by the
Maricopa County Attorney's Office (“MCAO”)
under the Arizona identity theft and forgery laws were
unauthorized aliens. Doc. 621-21 at 11; Doc. 538 at 27.
During this period, MCAO filed employment-related identity
theft or forgery charges against 1, 390 persons. Of these,
90% were designated as unauthorized aliens, 3% were
designated as not unauthorized aliens, and 7% had unknown
alien status. Doc. 584-1, ¶ 122. Both sides agree,
however, that the evidence does not show that this rate of
prosecution is out of proportion to the rate at which
unauthorized aliens commit identity theft or forgery in the
employment context. Doc. 589 at 54. Rather, because federal
law prohibits their employment, both sides find it obvious
that unauthorized aliens working in the United States use
false identifications to obtain employment. Doc. 538 at 20;
Doc. 573 at 17; Doc. 606 at 17 n.12.
2005 and 2015, approximately 23 different law enforcement
agencies in Maricopa County submitted identity theft cases to
MCAO for prosecution. Doc. 534 at 18. Of the 1, 353 cases for
which charging documents were available, approximately 90
percent relied on documents other than the Form I-9.
Id. at 24. Thus, it appears that about 10 percent of
MCAO prosecutions for identity theft or forgery involved
charges based at least in part on the Form I-9. Doc. 589 at
48. Apparently because he realized that the IRCA includes a
ban on state use of such documents (as discussed below),
Defendant Montgomery formally revised the MCAO's written
policy on September 17, 2014, to prohibit reliance on the
Form I-9 as evidence in trial or for charging purposes.
Id., ¶ 74; Doc. 538 at 29. Other documents
relied on by MCAO in identity theft and forgery cases include
false federal tax withholding forms (W-4), state tax
withholding forms (A-4), job applications, social security
cards, state identification cards, driver's licenses, and
federal tax reporting forms (W-2). Doc. 584, ¶ 60; Doc.
589 at 40.
Maricopa County Sheriff's Office.
Arpaio acknowledges that a majority of those referred by law
enforcement agencies for identity theft prosecutions are
unauthorized aliens. Doc. 525 at 9; Doc. 584-1, ¶ 120. A
full 93% of MCSO's referrals of identity theft and
forgery cases were derived from Defendant Arpaio's
workplace investigations. Doc. 525 at 9. These investigations
generally would begin with a tip from the community regarding
a specific place of business and its employees, usually made
to telephone and email hotlines set up by MCSO. Doc. 538 at
19; Doc. 525 at 12. MCSO would then investigate the tip and,
if evidence suggested employees of the business were engaged
in identity theft or forgery, apply for a warrant to search
the worksite. Id. While executing the warrant, MCSO
would review and seize employment files and arrest individual
workers believed to have committed identity theft or forgery.
Id. Among other records, MCSO would seize Form I-9
documents. Doc. 538 at 28; Doc. 573, ¶ 80. Through 2014,
MCSO conducted over 80 workplace investigations, resulting in
the arrest of at least 806 employees who were almost
exclusively unauthorized aliens. Doc. 538 at 19; Doc. 573,
¶ 59. According to Defendant Arpaio, MCSO was
“enforce[ing] the illegal immigration laws by virtue of
going into businesses and locking up the employees with fake
IDs.” Doc. 621, ¶ 77; Doc. 573, ¶ 77.
preemption can be inferred either where there is a regulatory
framework so pervasive . . . that Congress left no room for
the States to supplement it or where the federal interest is
so dominant that the federal system will be assumed to
preclude enforcement of state laws on the same
subject.” Valle del Sol Inc. v. Whiting, 732
F.3d 1006, 1023 (9th Cir. 2013) (internal quotations and
brackets omitted). “[W]here a multiplicity of federal
statutes or regulations govern and densely criss-cross a
given field, the pervasiveness of such federal laws will help
to sustain a conclusion that Congress intended to exercise
exclusive control over the subject matter.” Laurence H.
Tribe, American Constitutional Law, § 6-31, at
1206-07. “The nature of the power exerted by Congress,
the object sought to be attained, and the character of the
obligations imposed by the law, are all important in
considering the question of whether supreme federal
enactments preclude enforcement of state laws on the same
subject.” Hines, 312 U.S. at 70.
the Court's previous preliminary injunction order,
Plaintiffs argue that Congress has preempted a field of
“unauthorized-alien fraud in obtaining employment,
” as related to the federal employment verification
process. Doc. 538 at 23; Doc. 606 at 11. According to
Plaintiffs, this definition of the preempted field was not
disturbed by the Ninth Circuit and remains law of the case.
Court's previous ruling, while certainly relevant, was
made at the preliminary injunction phase and thus was based
only on likelihoods - whether Plaintiffs were likely
to prevail on the merits of their claim. Puente, 76
F.Supp.3d. at 853. The Court's decision was also made on
a smaller factual record and less briefing than this ruling.
The Court is not bound by its previous decision, and, on the
more complete presentations now available, has taken a closer
look at both Congress' actions and Defendants'
applications of the challenged laws. As discussed below, the
Court finds a narrower congressional intent than it found in
the preliminary injunction ruling.
themselves depart from the field identified in the
Court's preliminary injunction ruling. They argue that
the preempted field is unauthorized alien fraud committed in
the federal employment verification process, and that this
preemption must be expanded to include any false documents
provided by an unauthorized alien to an employer in order to
maintain consistency with false information provided in the
verification process. Doc. 606 at 11 n.6. Thus, Plaintiffs
would include in the preempted field not only the use of
false documents submitted in the I-9 process or to show
authorization to work under federal law, but also the use of
any false communication made in the employment context in
order to be consistent with the I-9 false identity, such as
false tax forms, payroll forms, or applications for
argue that this broad field has been preempted by IRCA's
process for verifying eligibility of prospective employees,
the variety of civil and criminal sanctions for employers who
knowingly employ unauthorized aliens, and extensive civil,
criminal, and immigration penalties for unauthorized aliens
who engage in employment verification fraud. Doc. 538 at
14-15. As the intent of Congress is the touchstone, the Court
will look closely at each of the laws and regulations cited
The Use Limitation.
1324a(b)(5) provides that the Form I-9, and “any
information contained in or appended to such form, may not be
used for purposes other than for enforcement of this chapter
and sections 1001, 1028, 1546, and 1621 of Title 18.” 8
U.S.C. § 1324a(b)(5). This prohibition, which the Court
will refer to in this order as the “use limitation,
” prohibits the use of the Form I-9 and any attached
documents for any purpose other than enforcement of specific
federal criminal statutes. They cannot be used for other
purposes, including state prosecutions. The use limitation
certainly is relevant in assessing Congress's intent for
preemption purposes, but the focus of the provision is quite
narrow. It applies only to Form I-9 and documents appended to
the form. Id.
Criminal, Civil, and ...