Arizona v. Arpaio
| Decision Date | 22 November 2016 |
| Docket Number | No. CV-14-01356-PHX-DGC,CV-14-01356-PHX-DGC |
| Parties | Puente Arizona, et al., Plaintiffs, v. Joseph M Arpaio, et al., Defendants. |
| Court | U.S. District Court — District of Arizona |
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.
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.
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 socialsecurity 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.
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 aneconomic 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...
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