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Puente Arizona v. Arpaio

United States District Court, D. Arizona

November 22, 2016

Puente Arizona, et al., Plaintiffs,
v.
Joseph M Arpaio, et al., Defendants.

          ORDER

          David G. Campbell United States District Judge.

         This 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.

         The 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.

         I. Background.

         For 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.

         The 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.

         A. Federal Regulation of Unauthorized Alien Employment.

         In 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 States. Id.

         Following 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.

         After 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 completed.[1]

         The 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.

         Four 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.

         B. Arizona Laws.

         This 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.

         In July 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).

         In 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.

         Plaintiffs' 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.[2] 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. § 13-2009(a)(3).

         In 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 employment.” Id.

         Throughout 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.”

         This 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.

         Defendants 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.

         In 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.

         C. History of This Case.

         On 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.

         On 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 explained:

[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 conflicts arise.

Id. at 1105. The court vacated the preliminary injunction and remanded for consideration of Plaintiffs' as-applied challenge. Id. at 1110.

         The 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.

         D. Current Procedural Setting.

         The 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 liability.

         II. Legal Standard.

         A party 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.

         III. Preemption.

         A. Basic Preemption Principles.

         “The 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)).

         The 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.

         As 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.

         This 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.

         Protecting 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)).

         B. As-Applied Preemption.

         Plaintiffs 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 laws.

         As the 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.

         The 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.

         C. Relevant Facts.

         1. Maricopa County Attorney's Office.

         Between 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.

         Between 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.

         2. Maricopa County Sheriff's Office.

         Defendant 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.

         D. Field Preemption.

         “[F]ield 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.

         Citing 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. Id.

         The 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.

         Plaintiffs 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 employment benefits.

         Plaintiffs 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 by Plaintiffs.[3]

         1. The Use Limitation.

         Section 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.

         2. Criminal, Civil, and ...


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