TOPEKA — The Kansas attorney general revealed a decision Thursday to ask the U.S. Supreme Court to review a series of state appellate court rulings that limit prosecution of undocumented immigrants for identity theft.
Attorney General Derek Schmidt responded to the action by the Kansas Supreme Court to overturn convictions of three individuals for crimes including identity theft and making false information on state tax forms or private legal documents. In a 5-2 ruling, the Supreme Court’s majority concluded federal immigration law pre-empted Kansas from enforcing state criminal law in these cases.
“We are not convinced the Kansas court’s application of the federal immigration statute is correct, so we are requesting review of all three cases by the U.S. Supreme Court,” Schmidt said. “The Kansas court reasoned that the state cannot prosecute a defendant for falsifying state or private legal documents if the defendant also put the same false information on federal forms for employment verification. I doubt Congress intended that peculiar result.”
Schmidt said his office would work closely with Johnson County District Attorney Steve Howe, whose office prosecuted the three cases.
In a statement, Howe said he wasn’t convinced the state Supreme Court properly applied federal law.
“We are committed to continuing the fight to protect our citizens from identity theft and to hold all offenders accountable,” Howe said.
The attorney general formally notified the state Supreme Court of his decision to appeal, putting further proceedings in all three cases on hold until the U.S. Supreme Court decides whether to review them. A decision by the nation’s highest court on whether to review the Kansas cases isn’t expected until later this year or early next year.
Secretary of State Kris Kobach lamented on a Facebook post the Supreme Court’s decisions in State v. Garcia, State v. Morales and State v. Ochoa-Lara. The decisions reversed identity theft convictions for Donaldo Morales, Guadalupe Ochoa-Lara and Ramiro Garcia.
“Unfortunately, these decisions now mean that illegal aliens who steal Social Security numbers and work in Kansas cannot be prosecuted,” said Kobach, a Republican candidate for governor. “This is yet another respect in which Kansas is becoming the sanctuary state of the Midwest.”
Patrick Miller, an assistant professor of political science at the University of Kansas, said Kobach has been tying himself to the issue of immigration.
“This is certainly an issue that he has tied himself to,” Miller said. “It’s part of his brand.”
Morales, Ochoa-Lara and Garcia all initially were convicted in Johnson County District Court for using stolen Social Security numbers to get jobs. The court ruled 5-2 in each case that under the federal Immigration Reform and Control Act of 1986, employment forms containing employment eligibility information — such as a Social Security number — cannot be used for any purpose other than enforcing federal immigration law.