Employment Law Daily Arizona law against employment-related identity theft not facially preempted by federal immigration law
Wednesday, May 4, 2016

Arizona law against employment-related identity theft not facially preempted by federal immigration law

By Lorene D. Park, J.D. In a constitutional challenge by immigrant advocates against an amendment to Arizona’s identity theft laws addressing employment-related identity theft, the Ninth Circuit vacated a preliminary injunction granted by a federal district court, which erroneously found that the laws were likely facially preempted by federal immigration policy. In the appellate court’s view, the law was not preempted in all applications, and the case was remanded for consideration of the "as-applied" challenge to the statutes (Puente Arizona v. Arpaio, May 2, 2016, Tallman, R.). Identity theft laws amended. Between 2006 and 2008, Arizona had the highest per-capita identity theft rates in the nation; one third of the identity theft complaints involved employment-related fraud. To solve some of these problems, Arizona passed two bills that became the subject of this suit. In 2007, Arizona passed the "Legal Arizona Workers Act" (H.B. 2779), which amended Arizona’s aggravated identity theft statute, A.R.S. §13-2009, to prohibit using the information of another (real or fictitious) person "with the intent to obtain employment." In 2008, the state passed the "Employment of Unauthorized Aliens" law (H.B. 2745) to expand the state’s general identity theft statute, §13-2008(A), to reach employment-related identity theft. Enforcement actions. Since the laws were amended, Arizona has aggressively pursued enforcement actions, most of which have been against "unauthorized aliens" (which the appeals court noted refers to those who "entered or are present in the United States in violation of federal immigration law"), though some U.S. citizens and authorized aliens were also prosecuted. While many of those prosecuted under the identity theft laws used a false identity to prove they were authorized to work in the U.S., other defendants used false documents for non-immigration purposes (including, for example, to hide a negative criminal history from a potential employer). Constitutional challenge. Puente Arizona, an immigrant advocacy organization, along with certain individuals, challenged the amended identity theft laws as unconstitutional for violating the Supremacy Clause and the Equal Protection Clause. In an attempt to repeal the identity theft laws, Puente sued the State of Arizona, Maricopa County, and the county’s sheriff and attorney. In August 2014, Puente moved for a preliminary injunction, arguing that IRCA established a "comprehensive framework" for regulating the employment of unauthorized aliens, so Arizona’s employment-related identity theft laws were facially preempted. Preliminary injunction. The district court agreed that the laws were likely unconstitutional on their face and granted the preliminary injunction on conflict and field preemption grounds. It enjoined the state from enforcing A.R.S. §13-2009(A)(3) and the portion of A.R.S. §13-2008(A) that addresses actions committed "with the intent to obtain or continue employment." In the same order, it denied the county’s Rule 12(b)(6) motion to dismiss the Monell claim, which argued that the county’s lack of control over the sheriff showed he was not a final policymaker. Arizona filed an interlocutory appeal of the injunction and the county sought review of the Monell holding (the appeal of the Monell issue was dismissed for lack of pendent jurisdiction). Preemption in a nutshell. Vacating the preliminary injunction, the Ninth Circuit found that Puente failed to show it was likely to succeed on the merits of its facial challenge. Discussing the long-held principles of preemption, the appeals court noted that preemption may be implied where the area of law is fully occupied by federal regulation (field preemption) or where a state law conflicts with federal law (meaning it is impossible to comply with both or the state law is an "obstacle" to fully executing the purpose of the federal law). The touchstone of the inquiry is congressional intent. The appeals court was also guided by rules applied to facial challenges—to succeed on a facial challenge, a plaintiff must show that "no set of circumstances exists under which the Act would be valid." Facial challenge rejected. Here, the identity theft laws were not facially preempted because the appeals court found that they have "obvious constitutional applications." Significantly, Puente sought a preliminary injunction based solely on its claim that the laws were facially preempted under the Supremacy Clause—and it asked the court to enjoin enforcement of all applications of the identity theft laws. It was also significant to the appeals court that the laws were textually neutral, meaning they applied to unauthorized aliens, authorized aliens, and U.S. citizens alike. So, for example, the laws could be applied to a sex offender who used a false identity to get a job at a daycare, or to a convicted felon who liked about his criminal history on a job application to gain a position of trust. In fact, noted the court, Arizona has prosecuted U.S. citizens for doing just that. In short, you cannot tell that the identity theft laws undermine federal immigration policy just by looking at the text itself, and only when studying certain applications do immigration conflicts arise. Although Puente argued that the laws were passed with the intent to regulate immigration, and that they conflicted with the federal government’s exclusive prosecutorial discretion and the text of IRCA, the appeals court disagreed. While there was some tension between the federal scheme and some application of Arizona’s identity theft laws, that tension was simply not enough to rise to the level of a "clear and manifest purpose" to justify preempting the laws in their entirety. In the appellate court’s view, some of Puente’s arguments may be more persuasive in the context of an "as-applied" challenge, which has not yet been addressed by the district court, but they were not persuasive in a facial attack. Thus, the appeals court vacated the preliminary injunction and reversed the finding that the facial challenge was likely to succeed on the merits. However, it refrained from remarking on the viability of the as-applied challenge pending in the lower court.

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