PHOENIX — A federal judge on Tuesday upheld the legality of Arizona laws on identity theft, even though he said they may have been crafted largely to catch those not in the country legally.
In a 44-page ruling, U.S. District Court Judge David Campbell agreed with immigrant-rights groups that the state has no right to prosecute anyone for having a forged I-9, a federally issued document used to verify the identity and employment authorization of people who are not U.S. citizens. Campbell said that is solely the purview of the federal government.
But Campbell said none of that keeps state and local police and prosecutors from going after people for other forms of employment fraud, even if their fake documents are part of the same plan to illegally obtain a job.
Campbell also rejected arguments that the employment-fraud laws are unenforceable and void because they were “motivated solely by animus against unauthorized aliens.”
The judge acknowledged a series of statements by lawmakers in approving the measures nearly a decade ago that they wanted to use ID-fraud laws to rid the state of those not here legally. And he acknowledged that then-Gov. Janet Napolitano, in signing one of the bills, said that “a state like Arizona has no choice but to take strong action to discourage the further flow of illegal immigration through our borders.”
But Campbell said voiding a law on that basis is “a dangerous venture into legislative mind-reading.” And he said just because some legislators made certain statements does not mean others didn’t have the same goals in mind.
Arizona has had identity-theft laws for decades.
At issue here, however, were revisions made in 2007 and 2008 that created an entirely new crime of using fake IDs to get a job.
While the laws apply statewide, foes were particularly targeting the Maricopa County Attorney’s Office, which Campbell said has made extensive use of the statute.
The judge actually enjoined enforcement of the laws last year. But after a federal appeals court told him to take another look, he concluded that earlier decision was overbroad.
He said it is clear that Congress intended to make it illegal to commit fraud in obtaining an I-9 form.
That includes presenting false documents to get the form in the first place. And that, said Campbell, shows that Congress intended to make violations of that strictly a federal issue.
But he rejected arguments that federal pre-emption extends to everything else involved in the process.
For example, he said, someone who submits a false I-9 form to an employer then would need to submit other documents with the same fake name, things like a direct-deposit form for a bank account, which also would need to have that same fake name.
“Would prosecution based on the use of the false name at the bank be preempted simply because it was done to maintain consistency with fraud already committed on the Form I-9?” the judge mused.
“What if the employee sought a car loan, and used the same false name as he did on the Form I-9 because he knew the lender would contact his employer to verify his employment?” Campbell continued. “Certainly, the court can find no intent of Congress to preempt (such local laws) so broadly, let alone a clear and manifest intent.”
The judge also said there may be a desire by federal officials to preserve their ability to enforce labor laws and, when necessary, use undocumented workers as witnesses.
