State of Iowa v. Martha Aracely Martinez

IN THE SUPREME COURT OF IOWA
No. 15–0671
Filed June 9, 2017
STATE OF IOWA,
Appellee,
vs.
MARTHA ARACELY MARTINEZ,
Appellant.
Appeal from the Iowa District Court for Muscatine County,
Stuart P. Werling, Judge.
Defendant seeks interlocutory review of denial of motion to
dismiss. REVERSED AND REMANDED WITH DIRECTIONS.
Philip B. Mears of Mears Law Office, Iowa City, for appellant.
Thomas J. Miller, Attorney General, Darrel Mullins, Assistant
Attorney General, and Alan R. Ostergren, County Attorney, for appellee.
2
APPEL, Justice.
In this case, we are called upon to determine if an undocumented
noncitizen brought to Iowa as an eleven-year-old child by her parents,
educated in Iowa public schools, who has lived in Iowa continuously,
who is a mother of four children who are citizens of the United States,
and who applied for and was granted deferred action under the
Department of Homeland Security’s Deferred Action for Childhood
Arrivals (DACA) 1 program, may be prosecuted by State authorities for
using false documents to obtain federal employment authorization even
though federal law pervasively regulates employment of undocumented
noncitizens. The answer to this question is no.
I. Factual Background and Proceedings.
A. Facts Surrounding Martha Martinez. Martha Martinez came
to Muscatine with her parents in 1997 when she was eleven years old.
She attended Muscatine public schools and worked for several different
employers in Muscatine County.
When she was seventeen years old, Martinez applied for and
obtained an Iowa driver’s license. She used a birth certificate in the
name of Diana Castaneda, a person with a social security number, to
obtain the license. She renewed the license in 2008.
In 2013, Martinez used her fictitious driver’s license and a social
security card in the same name to obtain employment at Packer
Sanitation, a business located in Muscatine County. The documents
were used to obtain what is referred to as I-9 paperwork.
1Memorandum from Janet Napolitano, Sec’y of U.S. Dep’t of Homeland Sec. to
David L. Aguilar, Acting Comm’r, U.S. Customs & Border Prot.; Alejandro Mayorkas,
Dir., U.S. Citizenship & Immigration Servs.; and John Morton, Dir., U.S. Immigration &
Customs Enf’t (June 15, 2012), http://www.dhs.gov/xlibrary/assets/s1-exercising-
prosecutorial-discretion-individuals-who-came-to-us-as-children.pdf.
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Also in 2013, Martinez applied for and received temporary lawful
immigration status from the Department of Homeland Security pursuant
to the DACA program. Because she now had temporary lawful
immigration status, she was able to obtain work authorization in her
own name from the Department of Homeland Security.
Because of her lawful status, Martinez was now eligible, under
Iowa law, to obtain an Iowa driver’s license in her own name. In March
2014, she applied for a license in her own name, using her newly issued
social security card.
The Iowa Department of Transportation (IDOT), apparently using
facial recognition software, noted a similarity between her photograph
taken in 2014 and earlier photographs taken when she obtained her
driver’s license in 2003 and 2008. As a result, IDOT commenced an
investigation.
According to the notes of the IDOT investigator, a woman appeared
at the Iowa City drivers’ license station on May 2, 2003, with a California
birth certificate in the name of Diana Casteneda. She presented two rent
receipts as proof of residency in West Liberty. On October 28, 2008, a
woman appeared at the Iowa City drivers’ license station and applied for
an Iowa ID using the name of Diana Castaneda.
On March 6, 2014, a woman appeared at the Iowa City drivers’
license station and applied for an Iowa driver’s license. The person
presented an ID and employment authorization card in the name of
Martha Martinez. The photograph of Martinez, however, appeared to
match the photograph of Diana Castaneda from March 2, 2003, and
October 28, 2008.
The investigator determined that wages were being obtained by
Diana Castaneda at Packer Sanitation. The investigator contacted
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Packer Sanitation and obtained Diana Castaneda’s I-9, copies of her Iowa
ID, social security card, and payroll history showing she obtained wages
in excess of $1000. The investigator contacted immigration authorities
and learned that Martinez had a valid employment authorization card.
The investigator contacted Martinez by phone. Martinez admitted
she had obtained the false IDs in 2003 and 2008. She told the
investigator she came to the United States as a child and now had three
children and was pregnant with a fourth child. She borrowed a birth
certificate in the name of Diana Castaneda but did not know her. She
had been recently working but had quit due to her pregnancy. She
admitted prior employment under the name and social security number
of Diana Castaneda. The investigator informed Martinez that he would
recommend she be charged with identity theft. The investigator thanked
Martinez for being honest and cooperative.
B. Iowa Criminal Proceedings. The State filed two criminal
charges against Martinez. Count I alleged the crime of identity theft
under Iowa Code section 715A.8 (2013). This Code provision states, “A
person commits the offense of identity theft if the person fraudulently
uses or attempts to fraudulently use identification information of another
person, with the intent to obtain credit, property, services, or other
benefit.” Iowa Code § 715A.8(2). If the value of the credit, property, or
services exceeds one thousand dollars, the person commits a class “D”
felony. Id. § 715A.8(3). If the value of the credit, property, or services
does not exceed one thousand dollars, the person commits an aggravated
misdemeanor. Id. According to the minutes of testimony, the basis for
the intent to obtain “credit, property, or services” was employment at
Packer Sanitation earning wages in excess of $1000.
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Count II alleged the crime of forgery under Iowa Code section
715A.2(1). This Code provision declares that a person is guilty of the
crime of forgery if, with intent to defraud or injure anyone, a person
“[m]akes, completes, executes, authenticates, issues, or transfers a
writing so that it purports to be the act of another who did not authorize
that act.” Id. § 715A.2(1)(b). The provision further provides that forgery
is a class “D” felony if the writing is or purports to be “[a] document
prescribed by statute, rule, or regulation for entry into or as evidence of
authorized stay or employment in the United States.” Id.
§ 715A.2(2)(a)(4).
Martinez filed a motion to dismiss. Citing Arizona v. United States,
Martinez argued that federal law preempted her prosecution under the
Iowa identity theft and forgery statutes, both on their face and as
applied. 567 U.S. 387, ___, 132 S. Ct. 2492, 2510 (2012). The State
resisted. The State distinguished Arizona, noting that in that case, the
Arizona statute specifically criminalized failure to comply with federal
alien registration requirements while the statutes under which Martinez
was charged are independent of federal law.
The district court denied the motion to dismiss. According to the
court, the charges of identity theft and forgery were “state crimes
independent of Defendant’s immigration status.” In prosecuting
Martinez, the court stated, the State was not acting to enforce or attack
federal immigration law. Therefore, Martinez’s prosecution was not
preempted by federal law.
Martinez sought interlocutory review. We granted the application.
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II. Discussion.
A. Overview of Federal Immigration Law Related to
Unauthorized Employment of Illegal Aliens.
1. Introduction. “The Government of the United States has broad,
undoubted power over the subject of immigration and the status of
aliens.” Id. at ___, 132 S. Ct. at 2498. This broad authority is in part
based upon the federal government’s power to “establish a[] uniform Rule
of Naturalization.” Id. (quoting U.S. Const. art. I, § 8, cl. 4). It is also
based upon the federal government’s inherent power as a sovereign to
control and conduct relations with foreign governments. Id. As
demonstrated by an amicus brief in Arizona filed by sixteen nations,
immigration policy can affect trade, investment, tourism, and diplomatic
relations for the entire Nation as well as the perceptions and expectations
of aliens on this country who seek full protection of its law. See Mot. of
Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, Dominican
Republic, Ecuador, El Salvador, Guatemala, Honduras, Nicaragua,
Panama, Paraguay, Peru and Uruguay for Leave to Join the United
Mexican States as Amici Curiae in Supp. of Resp’t at 6, Arizona, 567 U.S.
387, 132 S. Ct. 2492 (2012) (No. 11–182), 2012 WL 1114006, at *6.
Current national and international debate regarding building a wall on
our southern border and the circumstances under which noncitizens
from other nations may enter the United States, along with discussions
about who should pay for the wall, has an impact on domestic
immigration and international relations.
2. Early regulation and plenary authority. The United States
Supreme Court has observed that the supremacy of national power in
the general field of foreign affairs—including immigration, naturalization,
and deportation—is made clear by the United States Constitution. Hines
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v. Davidowitz, 312 U.S. 52, 62, 61 S. Ct. 399, 401–02 (1941). Yet, until
1891, no comprehensive immigration legislation existed, and a number
of states enacted discriminatory legislation. See Kevin J. Fandl, Putting
States Out of the Immigration Law Enforcement Business, 9 Harv. L. &
Pol’y Rev. 529, 530–31 (2015) [hereinafter Fandl]. Responding to
discriminatory legislation against Chinese aliens, the United States
Supreme Court in Chy Long v. Freeman, 92 U.S. 275, 280 (1875), and
Fong Yue Ting v. United States, 149 U.S. 698, 707, 13 S. Ct. 1016, 1019
(1893), emphasized the need for “absolute and unqualified” power to
deport aliens in the interest of national sovereignty. Fandl, 9 Harv. L. &
Pol’y Rev. at 531–32 (quoting Fong Yue Ting, 149 U.S. at 707, 13 S. Ct. at
1019).
3. Overview of Immigration and Nationality Act. Congress exercised
its power over immigration through enactment of the Immigration and
Nationality Act (INA) which, along with other enactments, provides a
“comprehensive federal statutory scheme for regulation of immigration
and naturalization” and sets “the terms and conditions of admission to
the country and the subsequent treatment of aliens lawfully in the
country.” Chamber of Commerce of U.S. v. Whiting, 563 U.S. 582, 587,
131 S. Ct. 1968, 1973 (2011) (quoting De Canas v. Bica, 424 U.S. 351,
353, 359, 96 S. Ct. 933, 935, 938 (1976), superseded by statute,
Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, 100
Stat. 3359, as recognized in Chamber of Commerce, 563 U.S. at 590, 131
S. Ct. at 1975); see 8 U.S.C. §§ 1101–1537.
By way of brief summary, the INA provides criteria by which
“aliens,” defined as “any person not a citizen or national of the United
States,” may enter, visit, and reside in the country. 8 U.S.C.
§ 1101(a)(3); see Lozano v. City of Hazelton, 620 F.3d 170, 196 (3d Cir.
8
2010), vacated on other grounds by 563 U.S. 1030, 131 S. Ct. 2958(2011). The INA establishes three categories of aliens:
(1) nonimmigrants, (2) immigrants, and (3) refugees and asylees. 8
U.S.C. §§ 1101(a)(15), 1151, 1157–58; see Lozano, 620 F.3d at 196. In
order to be legally admitted to the United States, aliens must meet the
eligibility criteria of one of these categories. Lozano, 620 F.3d at 196.
Certain aliens who have health conditions, have been convicted of certain
crimes, present security concerns, or have been recently removed from
the United States are inadmissible. 8 U.S.C. § 1182.
Persons in the United States unlawfully are subject to removal,
with removal proceedings under the INA setting forth the “sole and
exclusive procedure for determining whether an alien may be admitted to
the United States or, if the alien has been so admitted, removed from the
United States.” Id. § 1229a(a)(3). INA removal procedures provide for
notice, the opportunity to be heard, the opportunity to be represented by
counsel, and the possibility of discretionary relief from removal including
postponement of removal, cancellation of removal, or even adjustment of
status to that of lawful permanent residency. Id. §§ 1229a(c), 1229b.
4. Immigration Reform and Control Act. The INA as originally
enacted contained no specific prohibition regarding the employment of
aliens which was, as noted by the Supreme Court, at most a “peripheral
concern.” De Canas, 424 U.S. at 360, 96 S. Ct. at 939. That changed,
however, with the enactment of the Immigration Reform and Control Act
(IRCA) in 1986. Arizona, 567 U.S. at ___, 132 S. Ct. at 2504; see 8
U.S.C. §§ 1324a–1324b. The IRCA established “a comprehensive
framework for ‘combating the employment of illegal aliens.’ ” Arizona,
567 U.S. at ___, 132 S. Ct. at 2504 (quoting Hoffman Plastic Compounds,
Inc. v. NLRB, 535 U.S. 137, 147, 122 S. Ct. 1275, 1282 (2002)). Under
9
the IRCA, Congress declared it unlawful to knowingly hire or continue to
employ an unauthorized alien without complying with the work
authorization verification system created by the statute. 8 U.S.C.
§ 1324a(a)(1)–(2).
In order to verify work authorization, the employer must attest
under penalty of perjury that an employee is not an unauthorized alien
by physically examining documents such as a passport, permanent
resident card, driver’s license, or other comparable document, and
confirm that those documents reasonably appear to be genuine. Id.
§ 1324a(b)(1)(A)–(D). On the form known as the I-9, employees must also
make an attestation of their authorized work status. Id. § 1324a(b)(2).
With respect to the I-9, Congress has provided that “any
information contained in or appended to such form, may not be used for
purposes other than for enforcement of” the INA and enumerated federal
laws regarding false statements, identification-document fraud, fraud in
the federal employment verification system, and perjury. Id.
§ 1324a(b)(5). As noted by the United States Supreme Court in Arizona,
“Congress has made clear . . . that any information employees submit to
indicate their work status ‘may not be used’ for purposes other than
prosecution under specified federal criminal statutes.” Arizona, 567 U.S.
at ___, 132 S. Ct. at 2504 (emphasis added) (quoting 8 U.S.C.
§ 1324a(b)(5)).
Federal employment authorization verification requirements are
enforced “through criminal penalties and an escalating series of civil
penalties tied to the number of times an employer has violated the
provisions.” Id.; see 8 U.S.C. § 1324a(e)–(f). Congress did not authorize
criminal penalties for aliens seeking or engaging in unauthorized
employment.
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Congress authorized imposition of a range of penalties on aliens
who commit employment-authorization-related fraud in the IRCA.
Congress authorized federal criminal penalties against a person who
knowingly uses a document not lawfully issued to the person, a false
document, or a false attestation “for the purpose of satisfying a
requirement” of the federal employment verification system. 18 U.S.C.
§ 1546(b). Violators of this criminal provision may be sentenced for up to
five years in prison. Id. Congress also authorized federal criminal
penalties against a person who uses or possesses an immigration
document, including one that demonstrates federal work authorization,
“knowing it to be forged, counterfeited, altered, or falsely made, or to
have been procured . . . by fraud or unlawfully obtained.” Id. § 1546(a).
Persons convicted under this statute, in most cases, may be imprisoned
for up to ten years. Id. In addition to the criminal penalties, Congress
authorized civil penalties for document fraud involving immigration
requirements, include the work authorization requirement. 8 U.S.C.
§ 1324c(a)(1)–(4), (d)(3).
Finally, Congress authorized immigration penalties for persons
involved in document fraud. For example, Congress authorized removal
of persons convicted of federal criminal document fraud. Id.
§ 1227(a)(3)(B)–(C); id. § 1324c; 18 U.S.C. § 1546. Further, federal law
may preclude aliens from becoming a lawful permanent resident if the
alien was employed while he was an “unauthorized alien.” 8 U.S.C.
§ 1255(c)(2).
5. Illegal Immigration Reform and Immigrant Responsibility Act. In
1996, Congress amended the INA by enacting the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No.
104–208, 110 Stat. 3009 (codified as amended in various sections of 8
11
U.S.C.). The IIRIRA called for improvements in the employer verification
system and required that the Attorney General and later the Director of
Homeland Security to develop pilot programs designed to improve
employment eligibility confirmation process. See Lozano, 620 F.3d at
200. Ultimately, only one of the pilot programs, E-Verify, was
reauthorized and expanded to all fifty states. Id. The use of E-Verify
rather than the ordinary I-9 process remains voluntary, with a few
exceptions. Id.The IIRIRA authorized the Department of Homeland Security to
enter into agreements with state and local law enforcement agencies to
enforce federal immigration law. 8 U.S.C. § 1357(g). Under this
provision, state and local governments may assist federal enforcement if
(1) there is a written agreement, (2) local cooperating authorities receive
appropriate training, and (3) local authorities operate under the
supervision of federal immigration officials. Id.
6. Federal penalties for immigration document fraud. The various
federal statutes establish a wide range of penalties for document fraud
related to immigration. Document fraud in immigration matters is
prohibited and subject to an administrative enforcement regime. Id.
§ 1324c. Criminal penalties for fraud and misuse of visas, permits, and
other documents are provided in 18 U.S.C. § 1546. In addition, the
Identity Theft Penalty Enhancement Act imposes more severe
consequences on those who use social security numbers, credit card
accounts, or other information in connection with a felony, including
violation of immigration law. 18 U.S.C. § 1028A. However, Congress
exempted false use of social security numbers for work in certain
situations from claims of fraud under the Social Security Act. 42 U.S.C.
§ 408(e).
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7. Discretion in enforcement of immigration laws. Under federal
immigration laws, discretion is vested in federal officials in two ways.
Federal immigration law is replete with statutory provisions explicitly
vesting discretion in the executive branch. See, e.g., Reno v. Am.-Arab
Anti-Discrimination Comm., 525 U.S. 471, 483–84, 119 S. Ct. 936, 943
(1999) (stating in “the initiation or prosecution of various stages in the
deportation process . . . [a]t each stage the Executive has discretion to
abandon the endeavor”).
Congress has also delegated to the executive branch the
determination of when a noncitizen may work. 8 U.S.C. § 1324a(h)(3)
(removing from definition of “unauthorized alien” those who the Attorney
General authorized to be employed even when they are not lawfully
admitted for permanent residence). The implementing regulations
provide that an alien without lawful status may still be granted work
authorization when the administrative convenience gives cases lower
priority and an alien establishes economic necessity. 8 C.F.R.
§ 274a.12(c)(14) (2016).
Further, the United States Supreme Court has “recognized on
several occasions over many years that an agency’s decision not to
prosecute or enforce, whether through civil or criminal process, is a
decision generally committed to an agency’s absolute discretion.”
Heckler v. Chaney, 470 U.S. 821, 831, 105 S. Ct. 1649, 1655 (1985). In
exercising discretion, the United States Supreme Court has recognized
that the executive engages in the “balancing of a number of factors which
are peculiarly within its expertise.” Id. As a result, the cases generally
recognize that immigration laws vest substantial discretion in the
executive branch with respect to enforcement. See Ariz. Dream Act Coal.
13
v. Brewer, 855 F.3d 957, 967 (9th Cir. 2017), petition for cert. filed, 85
U.S.L.W. 3471, (U.S. Mar. 29, 2017) (No. 16–1180).
B. Implementation of Supremacy Clause Through Principles of
Preemption. Under the Supremacy Clause of the United States
Constitution, “the Laws of the United States . . . shall be the supreme
Law of the Land . . . any Thing in the . . . Laws of any State to the
Contrary notwithstanding.” U.S. Const. art. VI, cl. 2. Since the days of
John Marshall, the Supremacy Clause has been interpreted to mean that
even if a state statute is enacted in the execution of acknowledged state
powers, state laws that “interfere with, or are contrary to the laws of
Congress” must yield to federal law. Gibbons v. Ogden, 22 U.S. 1, 211
(1824). The United States Supreme Court has implemented the
Supremacy Clause through the development of its preemption doctrine.
Fid. Fed. Sav. & Loan Ass’n v. de la Cuesta, 458 U.S. 141, 152, 102
S. Ct. 3014, 3022 (1982).
The contours of the doctrine of preemption, if sometimes difficult
to apply, are well established. The United States Supreme Court has
developed two broad categories of preemption of state law: express and
implied. Id. at 152–53, 102 S. Ct. at 3022. Express preemption occurs
when the federal statutory text clearly provides that congressional
authority is exclusive. Jones v. Rath Packing Co., 430 U.S. 519, 525, 97
S. Ct. 1305, 1309 (1977). When express preemption is implicated, close
examination of statutory language is ordinarily required to implement
congressional intent. CSX Transp., Inc. v. Easterwood, 507 U.S. 658,
664, 113 S. Ct. 1732, 1737 (1993).
In addition, the Supreme Court has recognized two types of implied
preemption—field preemption and conflict preemption—which arise even
when there is no express provision in the federal statute preempting local
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law. Oneok, Inc. v. Learjet, Inc., 575 U.S. ___, ___, 135 S. Ct. 1591, 1595
(2015). Field preemption arises when Congress has enacted a
comprehensive scheme. Pac. Gas & Elec. Co. v. State Energy Res.
Conservation & Dev. Comm’n, 461 U.S. 190, 203–04, 103 S. Ct. 1713,
1722 (1983). In these cases, congressional intent to preempt can be
inferred from a framework of regulation “so pervasive . . . that Congress
left no room for the States to supplement it” or where there is a “federal
interest . . . so dominant that the federal system will be assumed to
preclude enforcement of state laws on the same subject.” Rice v. Santa
Fe Elevator Corp., 331 U.S. 218, 230, 67 S. Ct. 1146, 1152 (1947).
Conflict preemption occurs when a state law conflicts with a
federal provision. Wis. Pub. Intervenor v. Mortier, 501 U.S. 597, 605, 111
S. Ct. 2476, 2482 (1991). There are two variations of conflict
preemption. Conflict preemption occurs when “compliance with both
federal and state regulation is a physical impossibility.” Fla. Lime &
Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142–43, 83 S. Ct. 1210,
1217 (1963). Conflict preemption also is imminent whenever two
separate remedies are brought to bear on the same activity. Wis. Dep’t of
Indus., Labor & Human Relations v. Gould Inc., 475 U.S. 282, 286, 106
S. Ct. 1057, 1061 (1986).
Conflict preemption also occurs when a state law is an obstacle to
the accomplishment of a federal purpose. Hines, 312 U.S. at 66–67, 61
S. Ct. at 404. In this regard, the United States Supreme Court has said,
“What is a sufficient obstacle is a matter of judgment, to be informed by
examining the federal statute as a whole and identifying its purpose and
intended effects.” Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363,
373, 120 S. Ct. 2288, 2294 (2000).
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C. Application of Preemption Principles to Immigration Law.
1. Overview of United States Supreme Court preemption precedent
in immigration cases. In Hines, the United States Supreme Court
considered the validity of a Pennsylvania alien registration statute. 312
U.S. at 59, 61 S. Ct. at 400. A year earlier, Congress had enacted a
Federal Alien Registration Act. Id. at 60, 61 S. Ct. at 400. The Hines
Court noted that “the regulation of aliens is so intimately blended and
intertwined with responsibilities of the national government that where it
acts, and the state also acts on the same subject, ‘the act of [C]ongress
. . . is supreme.’ ” Id. at 66, 61 S. Ct. at 403–04 (quoting Gibbons, 22
U.S. at 211). The Hines court canvassed the various approaches to
preemption, noting that none of the formulations or expressions
“provides an infallible constitutional test or an exclusive constitutional
yardstick.” Id. at 67, 61 S. Ct. at 404. And while the federal law did not
have an express preemption provision, the Hines Court concluded that
the Pennsylvania law “stands as an obstacle to the accomplishment and
execution of the full purposes and objectives of Congress.” Id.A more recent immigration case dealing with federal preemption is
De Canas, 424 U.S. 351, 96 S. Ct. 933. In De Canas, the Supreme Court
considered whether federal law prohibited California from enacting a
statute which forbade an employer from knowingly employing an alien
who was not entitled to lawful residence in the United States if such
employment would have adverse effect on lawful resident workers. Id. at
352–53, 96 S. Ct. at 935. A California appellate court held that the
statute was unconstitutional, noting that “in the area of immigration and
naturalization, congressional power is exclusive.” De Canas v. Bica, 115
Cal. Rptr. 444, 446 (Ct. App. 1974). The California court further held
that state regulatory power was foreclosed when Congress “as an
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incident of national sovereignty” enacted the INA as a comprehensive
scheme governing all aspects of immigration and naturalization,
including the employment of aliens and specifically declined to adopt
sanctions on employers. Id.The De Canas Court held that the California statute was not
preempted by the INA. 424 U.S. at 365, 96 S. Ct. at 941. The Court
concluded preemption could not be required because “the nature of the
regulated subject matter permits no other conclusion” nor because
“Congress has unmistakably so ordained.” Id. at 356, 96 S. Ct. at 937(quoting Fla. Lime, 424 U.S. at 142, 83 S. Ct. at 1217). The Court was
unwilling to presume that in enacting the INA, Congress intended to oust
state authority to regulate the employment of immigrants in a manner
consistent with federal law. Id. at 357, 96 S. Ct. at 937. The Court
declined to consider whether the California statute was “an obstacle to
the accomplishment and execution of the full purposes and objectives of
Congress” because the issue was not addressed below. Id. at 363, 96
S. Ct. at 940 (quoting Hines, 312 U.S. at 67, 61 S. Ct. at 404). In light of
the vibrancy of obstacle preemption in immigration law, De Canas thus
was a limited precedent from the outset.
In Hoffman Plastic, the United States Supreme Court considered
whether an unauthorized immigrant could receive back pay when the
individual was unlawfully terminated in retaliation for participating in
collective bargaining. 535 U.S. at 140, 122 S. Ct. at 1278. In a battle
between federal agencies, the Supreme Court held that a National Labor
Relations Board remedy for an illegal alien would “unduly trench” upon
the IRCA. Id. at 151, 122 S. Ct. at 1284. Although not a preemption
case, Hoffman Plastic declared that “combating the employment of illegal
aliens . . . [is] central to ‘[t]he policy of immigration law.’ ” Id. at 140, 122
17
S. Ct. at 1278 (quoting INS v. Nat’l Ctr. for Immigrants’ Rights, Inc., 502
U.S. 183, 194 n.8, 112 S. Ct. 551, 558 n.8 (1991)).
The most recent and most important United States Supreme Court
case involving preemption in the context of immigration and employment
is Chamber of Commerce, 563 U.S. 582, 131 S. Ct. 1968. In Chamber of
Commerce, the Court considered a challenge to an Arizona law which
allowed for the suspension and revocation of business licenses for
employing illegal aliens and required all employers to verify the
employment status of all employees using an internet-based system, E-
Verify. Id. at 587, 131 S. Ct. at 1973. Unlike De Canas, which involved
a preemption claim under the INA, the Chamber of Commerce case
involved preemption under the IRCA. Id. at 588–89, 131 S. Ct. at 1974.
The Chamber of Commerce Court ruled, however, that the Arizona
regulation was within a “savings clause” of the IRCA, which provided that
federal immigration law preempts “any State or local law imposing civil or
criminal sanctions (other than through licensing and similar laws) upon
those who employ . . . unauthorized aliens.” Id. at 590, 611, 131 S. Ct.
at 1975, 1987 (quoting 8 U.S.C. § 1324a(h)(2)).
The last case is Arizona, 567 U.S. 387, 132 S. Ct. 2492. In
Arizona, the United States challenged four provisions of an Arizona
statute dubbed the Support Our Law Enforcement and Safe Neighbor’s
Act. Id. at ___, 132 S. Ct. at 2497. Two of the challenged provisions
created new criminal offenses. Id. One relevant provision made failure
to comply with alien registration requirements a state misdemeanor. Id.Another provision made it a misdemeanor for an unauthorized alien to
seek or engage in work in the state. Id. at ___, 132 S. Ct. at 2497–98.
Two other provisions gave arrest authority and investigative duties with
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respect to certain aliens to state and local law enforcement. Id. at ___,
132 S. Ct. at 2498.
Justice Kennedy delivered the opinion of the Court. Id. at ___, 132
S. Ct. at 2497. Justice Kennedy began with a review of the broad scope
of federal immigration policy. Id. at ___, 132 S. Ct. at 2498–99. Noting
the impact of immigration policy on international relations, Justice
Kennedy stressed that the federal governance of immigration status is
“extensive and complex.” Id. at ___, 132 S. Ct. at 2499. After canvassing
the broad sweep of immigration provisions, Justice Kennedy emphasized
that “[a] principal feature of the removal system is the broad discretion
exercised by immigration officials.” Id. Justice Kennedy explained,
Discretion in the enforcement of immigration law
embraces immediate human concerns. Unauthorized
workers trying to support their families, for example, likely
pose less danger than alien smugglers or aliens who commit
a serious crime. The equities of an individual case may turn
on many factors, including whether the alien has children
born in the United States, long ties to the community, or a
record of distinguished military service.
Id.Justice Kennedy recognized, however, that states bear “many of
the consequences of unlawful immigration.” Id. at ___, 132 S. Ct. at
2500. Justice Kennedy cited statistics indicating that hundreds of
thousands of deportable aliens are captured in Arizona each year. Id.Further, Justice Kennedy acknowledged studies reporting that aliens are
responsible for a disproportionate share of serious crime. Id.After surveying traditional categories of federal preemption, Justice
Kennedy proceeded to evaluate each of the challenged provisions of
Arizona law. Id. at ___, 132 S. Ct. at 2500–01. The first provision
considered provided a state criminal penalty for failure to complete or
carry an alien registration document in violation of federal law. Id. at
19
___, 132 S. Ct. at 2501. Justice Kennedy wrote that although the statute
was not identical to that considered in Hines, federal immigration law
provides “a full set of standards governing alien registration, including
the punishment for noncompliance. It was designed as a ‘harmonious
whole.’ ” Id. at ___, 132 S. Ct. at 2502 (quoting Hines, 312 U.S. at 72, 61
S. Ct. at 407).
According to Justice Kennedy, field preemption foreclosed state
regulation even if the state regulation is parallel to federal standards. Id.Justice Kennedy emphasized permitting Arizona to impose its own
penalties for the federal offenses would conflict with the careful
framework Congress adopted. Id. If the provision of state law were
enforced, Arizona would “have the power to bring criminal charges
against individuals for violating a federal law even in circumstances
where federal officials in charge of the comprehensive scheme determine
that prosecution would frustrate federal policies.” Id. ___, 132 S. Ct. at
2503. Further, Justice Kennedy noted that the penalties for violation of
the Arizona law ruled out probation as a possible sentence and
eliminated the possibility of a pardon, thus conflicting with the plan that
Congress put in place. Id.Justice Kennedy next turned to the provision of Arizona law which
made it a state misdemeanor for “an unauthorized alien to knowingly
apply for work, solicit work in a public place or perform work as an
employee or independent contractor.” Id. (quoting Ariz. Rev. Stat. Ann.
§ 13–2928(c) (West Supp. 2011)). This Arizona statutory provision had
no counterpart in federal law. Id. The United States claimed the
provision upset “the balance struck by the [IRCA] and must be
preempted as an obstacle to the federal plan of regulation and control.”
Id.20
Justice Kennedy recognized that in De Canas, the Court had held
the federal government had expressed no more than “a peripheral
concern with [the] employment of illegal entrants.” Id. (alteration in
original) (quoting De Canas, 424 U.S. at 360, 96 S. Ct. at 939). But
Justice Kennedy noted that in light of the enactment of the IRCA,
“[c]urrent federal law is substantially different from the regime that
prevailed when De Canas was decided.” Id. at ___, 132 S. Ct. at 2504.
Justice Kennedy noted that IRCA now created “a comprehensive
framework” for “combating the employment of illegal aliens.” Id. (quoting
Hoffman Plastic, 535 U.S. at 147, 122 S. Ct. at 1282).
In analyzing the comprehensive framework of IRCA, Justice
Kennedy stressed that it did not impose criminal sanctions on the
employee when aliens sought or engaged in unauthorized work. Id.While Justice Kennedy recognized federal law made it a crime for
unauthorized workers to obtain employment through fraudulent means,
Congress made it clear that any information employees submitted to
indicate their work status could not be used for purposes other than
“prosecution under specified federal criminal statutes for fraud, perjury,
and related conduct.” Id.; see 8 U.S.C. § 1324a(b)(5), (d)(2)(F)–(G).
Justice Kennedy recognized the express exemption provision of
IRCA was silent about whether additional penalties could be imposed
against employees seeking to engage in unauthorized work. Id. But
Justice Kennedy emphasized that “the existence of an ‘express
preemption provisio[n] does not bar the ordinary working of conflict
preemption principles’ or impose a ‘special burden’ that would make it
more difficult to establish the preemption of laws falling outside the
clause.” Arizona, 567 at ___, 132 S. Ct. at 2504–05 (quoting Geier v. Am.
21
Honda Motor Co., 529 U.S. 861, 869–70, 120 S. Ct. 1913, 1919–20
(2000)).
Justice Kennedy continued that the “Arizona law would interfere
with the careful balance struck by Congress with respect to unauthorized
employment of aliens.” Id. at ___, 132 S. Ct. at 2505. Although the goals
and methods of Arizona law to achieve deterrence were the same as
federal law, Justice Kennedy observed, the conflict is in “the method of
enforcement” and that “[c]onflict in technique can be fully as disruptive
to the system Congress enacted as conflict in overt policy.” Id. (quoting
Amalgamated Ass’n of St., Elec. Ry. & Motor Coach Emps. of Am. v.
Lockridge, 403 U.S. 274, 287, 91 S. Ct. 1909, 1918 (1971)).
Justice Kennedy next examined the third challenged provision of
Arizona law which provided that a state officer, “without a warrant, may
arrest a person if the officer has probable cause to believe . . . [the
person] has committed any public offense that makes [him] removable
from the United States.” Id. (quoting Ariz. Rev. Stat. Ann. § 13-
3883(A)(5)). After canvassing federal law related to removal, Justice
Kennedy observed the Arizona statue gave state officers even greater
authority to arrest aliens on the basis of possible removability than
Congress gave to trained federal immigration officers. Id. at ___, 132
S. Ct. at 2506. The state authority could be exercised without any input
from the federal government regarding whether an arrest is warranted in
a particular case. Id. This, according to Justice Kennedy, “would allow
the State to achieve its own immigration policy.” Id.Justice Kennedy further reasoned that allowing state authorities to
determine whether an alien should be detained for being removable
violates the principle that “the removal process is entrusted to the
discretion of the Federal Government.” Id. Authorizing state and local
22
officials to interfere with this discretion “creates an obstacle to the full
purposes and objectives of Congress.” Id. at ___, 132 S. Ct. at 2507.
Finally, Justice Kennedy turned to the fourth challenged provision
of Arizona law. Id. This fourth challenged provision required state
officers to make a “reasonable attempt” to determine the immigration
status of any person they stop or arrest if “reasonable suspicion exists
that the person is an alien and is unlawfully present in the United
States.” Id. (quoting Ariz. Rev. Stat. Ann. § 11-1051(B)). Further, the law
provided that the immigration status of any person arrested would be
determined before release. Id. Ordinarily, checking the immigration
status of a detained person involved a contact to Immigration and
Customs Enforcement (ICE), which keeps a database of immigration
records. Id.The Court upheld this provision of Arizona law against preemption
attack. Id. at ___, 132 S. Ct. at 2510. Justice Kennedy noted that
cooperation between federal and state officials is an important part of the
immigration system. Id. at ___, 132 S. Ct. at 2508. Further, Congress
required ICE to respond to requests for verification from state officials.
Id.Justice Kennedy closed his opinion with a melodious endorsement
of the beneficial aspects of immigration. Id. at ___, 132 S. Ct. at 2510.
He cited an immigration ceremony at the Smithsonian involving a dozen
immigrants who stood before the tattered flag that inspired the national
anthem. Id. He noted the history of the United States “is in part made of
the stories, talents, and lasting contributions of those who crossed
oceans and deserts to come here.” Id.
2. Application of preemption principles to immigration law by lower
federal courts. After Arizona, lower federal courts have grappled with
23
federal preemption questions involving immigrants and employment.
The closest precedent to the case before us arises from the state of
Arizona.
In Puente Arizona v. Arpaio, plaintiffs attacked two Arizona statutes
which criminalized the act of identity theft done with intent to obtain or
continue employment. 76 F. Supp. 3d 833, 842 (D. Ariz. 2015), rev’d in
part and vacated in part, 821 F.3d 1098 (9th Cir. 2016). The challenged
Arizona aggravated identity theft statute provided that “[a] person
commits aggravated taking the identity of another person . . . if the
person knowingly takes . . . or uses any personal identifying information
. . . of . . . [a]nother person, including a real or fictitious person, with the
intent to obtain employment.” Id. at 844 (quoting Ariz. Rev. Stat. Ann.
§ 13–2009). Another Arizona statute provided that a person commits
identity theft by taking, purchasing, manufacturing, recording,
possessing, or using personal identifying information with the intent to
engage in an unlawful purpose or to cause economic loss, or “with the
intent to obtain or continue employment.” Id. at 844–45.
The district court granted a preliminary injunction against
enforcement of the statutes on preemption grounds. Id. at 869. The
court recognized that the statutes were facially neutral and applied to
immigrants and nonimmigrants alike. Id. at 854. The court noted that a
state law may not “frustrate the operation of federal law [even if] the state
legislature in passing its law had some purpose in mind other than one
of frustration.” Id. at 855 (alteration in original) (quoting Perez v.
Campbell, 402 U.S. 637, 651–52, 91 S. Ct. 1704, 1712 (1971)). In any
event, based on legislative history and common sense, the court
determined that a primary purpose and effect of the statutes was to
24
impose criminal penalties on unauthorized aliens who sought or engaged
in unauthorized employment. Id.Turning to preemption analysis, the district court reasoned that in
Arizona, the Supreme Court did not conclude Congress had occupied the
field of “unauthorized-alien employment.” Id. at 856. Instead, the
district court stated the high court applied conflict preemption principles
in striking down an Arizona law that made it a crime for unauthorized
aliens to seek employment. Id.
But in this case, the district court noted, the plaintiffs identified a
narrower field, namely, “unauthorized-alien fraud in seeking
employment.” Id. This narrower field, according to the court, “ha[d]
been heavily and comprehensively regulated by Congress.” Id. The court
cited extensive regulations in the IRCA, emphasizing that Congress
imposed every kind of penalty that can arise from unauthorized alien use
of false document to secure employment—criminal, civil, immigration—
and had expressly limited states use of federal employment verification
documents. Id. at 857; see 8 U.S.C. § 1324a(b)(5), (d)(2)(F)–(G).
The district court turned to conflict preemption. Puente Ariz., 76
F. Supp. 3d at 857. The court noted that in considering conflict
preemption, direct conflict between federal law and state law is not
required. Id. According to the court, even when state and federal laws
have the same general objective, an “inconsistency of sanctions” between
two laws may “undermine[] the congressional calibration of force.” Id.
(quoting Crosby, 530 U.S. at 380, 120 S. Ct. at 2298). The district court
noted that under the Arizona identity theft law, only a criminal sanction
was available. Id. at 858. In contrast, federal authorities had a range of
options, including civil penalties. Id.
25
The district court concluded the overlapping penalties created by
the Arizona identity theft statutes which “layer additional penalties atop
federal law” likely result in preemption. Id. (quoting Ga. Latino All. for
Human Rights v. Governor of Ga., 691 F.3d 1250, 1267 (11th Cir. 2012)).
Like the United States Supreme Court in Arizona, the district court noted
that conflict is imminent whenever “two separate remedies are brought to
bear on the same activity.” Id. (quoting Gould Inc., 475 U.S. at 286, 106
S. Ct. at 1061). As a result, the court entered a preliminary injunction
prohibiting the enforcement of the identity theft statutes. Id. at 869.
The United States Court of Appeals for the Ninth Circuit reversed
the district court in Puente Arizona v. Arpaio, 821 F.3d 1098, 1111 (9th
Cir. 2016). The Ninth Circuit reversal, however, was on a narrow
ground, namely, that the facially neutral Arizona statutes were not
facially preempted. Id. at 1108. The Ninth Circuit came to this
conclusion because the statutes did not intrude on federal authority in
all its applications, as generally required for a successful facial attack.
Id. at 1107–08. The Ninth Circuit expressed no view as to whether the
statutes were preempted on an as-applied basis. Id. at 1108.
On remand, the district court considered whether the Arizona
statutes were preempted as applied. Puente Arizona v. Arpaio, No. CV-
14-01356-PHX-DGC, 2016 WL 6873294, at *1 (D. Ariz. Nov. 22, 2016).
The court found that Congress preempted “a relatively narrow field: state
prosecution of fraud in the I-9 process.” Id. at *12. In light of the
intruding provisions of state identity theft laws, the court concluded the
defendants were preempted under field preemption from using the I-9
form and accompanying documentation for investigations or
prosecutions of violations of the Arizona identity theft and forgery
statutes. Id. at *13.
26
The district court then turned to conflict preemption. Id. The
court determined the Arizona identity theft and forgery statutes were not
conflict preempted. Id. at *15. The court emphasized that federal law
only imposed criminal and civil penalties for fraud committed directly in
the I-9 process, or to satisfy other immigration requirements or receive
other immigration benefits. Id. at *13. But, the court reasoned, to the
extent state law imposed penalties on fraud committed outside the I-9
process, the state penalties did not “layer additional consequences on top
of federal penalties because the federal penalties [did] not address non-I-
9 conduct.” Id. The court found that use of a false name on an
employer’s direct deposit payroll form, for example, is not done for an
immigration purpose, but rather to obtain the convenience of direct
payroll deposits. Id. at *14.
Another case arising out of Arizona dealt with the question of
conflict preemption of a state policy refusing to allow DACA recipients to
obtain Arizona drivers’ licenses. Ariz. Dream Act Coal. v. Brewer, 757
F.3d 1053, 1057–58 (9th Cir. 2014). In Brewer, the Ninth Circuit
considered an appeal of a denial of a preliminary injunction restraining
the state from enforcing the statute. Id. at 1058.
The Ninth Circuit reversed and remanded the matter for entry of a
preliminary injunction prohibiting the defendants from enforcing its
policy. Id. The Brewer court declared that the plaintiff’s contention that
Arizona’s policy was conflict preempted because of its interference with
Congress’s intent that the executive branch possess discretion to
determine when citizens work in the United States was plausible. Id. at
1061.
The Brewer court then turned to the impact of Arizona law on
federal policy. Id. at 1062. The court reasoned that, as a practical
27
matter, the ability to drive is a virtual necessity for people in Arizona who
want to work. Id. The court emphasized it did not matter that the state’s
policy did not formally prohibit DACA recipients from working, because
preemption analysis must contemplate the practical result of the state
law. Id. The court reasoned that if the practical effect of the Arizona
policy “is that DACA recipients in Arizona are generally obstructed from
working—despite the Executive’s determination, backed by a delegation
of Congressional authority, that DACA recipients throughout the United
States may work—then the [state’s] policy is preempted.” Id. at 1063.
The court emphasized that state law “is preempted whenever its
application would frustrate the objectives and purposes of Congress,
even if the state law’s own application is frustrated by individuals’
noncompliance.” Id. On remand, the district court granted a permanent
injunction and the state appealed. Ariz. Dream Act Coal. v. Brewer, 81 F.
Supp. 3d 795, 811 (D. Ariz. 2015). The Ninth Circuit affirmed. Ariz.
Dream Act Coal v. Brewer, 818 F.3d 901, 920, amended by 855 F.3d 957.
Another case involving identity fraud is United States v. South
Carolina, 720 F.3d 518 (4th Cir. 2013). In South Carolina, the Fourth
Circuit considered the validity of a state statute making it unlawful for
any person to display or possess a false or counterfeit ID for “purpose[s]
of proving lawful presence in the United States.” Id. at 522. The state
argued that a presumption against preemption applied because “fraud is
an area traditionally for state legislation.” Id. at 532. The Fourth
Circuit, however, noted that when the fraud at issue involved federal
immigration documents, the presumption against preemption did not
apply. Id. The Fourth Circuit further stressed,
As with other immigration-related measures,
prosecution for counterfeiting or using federal immigration
documents is at the discretion of the Department of Justice
28
acting through the United States Attorney, and allowing the
state to prosecute individuals for violations of a state law
that is highly similar to a federal law strips federal officials of
that discretion.
Id. at 532–33. Concluding that Congress had occupied the field, the
Fourth Circuit noted that because enforcement of federal antifraud
statutes involved the discretion of federal officials, a state’s own law in
the area, inviting state prosecutions, would “stand[] as an obstacle to the
accomplishment and execution of the full purposes and objectives of
Congress.” Id. (quoting Hines, 312 U.S. at 67, 61 S. Ct. at 404).
3. Summary of general principles of preemption in the field of
modern immigration law. There are two general discernable trends in the
field of immigration. First, over time, federal regulation of immigration
has become increasingly detailed and complex. Second, as noted by one
legal expert, the trend in court decisions reflects recognition of broad
federal control over nearly the entire field of immigration. Fandl, 9 Harv.
L. & Pol’y Rev. at 532.
The expansive scope of federal preemption doctrine in the
immigration field recognizes, among other things, the role of
discretionary enforcement. Discretion has been baked into the cake of
immigration law for many years through congressional enactment and
caselaw. State law regulatory schemes that interfere with the systematic
implementation of federal enforcement discretion present an obstacle in
one of the main purposes of federal immigration policy: to speak with one
voice on immigration matters. For this reason, state mirror-image
enforcement of federal immigration law was soundly rejected in Arizona,
567 U.S. at ___, 132 S. Ct. at 2507.
Finally, through the enactment of 8 U.S.C. § 1357(g), Congress has
demonstrated an ability to identify areas of potential federal–state
29
cooperation in the enforcement of immigration law. Notably, however,
such federal–state cooperation must be subject to written agreements,
involve training of state officials, and be conducted under the supervision
of federal authorities. 8 U.S.C. § 1357(g)(1). Even where federal–state
cooperation has been expressly authorized, Congress has insisted on
substantial federal control of the underlying activities.
D. Application of Preemption Principles to Iowa’s Forgery
Statute. Iowa Code section 715A.2(2)(a)(4) is preempted on its face by
federal immigration law. The statute provides that forgery arises if the
writing is or purports to be “[a] document prescribed by statute, rule, or
regulation for entry into or as evidence of authorized stay or employment
in the United States.” Iowa Code § 715A.2(2)(a)(4). This statutory
provision is the mirror image of federal immigration law, namely 18
U.S.C. § 1546(a).
Such mirror-image statutes are preempted by federal law. As
noted in Arizona when the Supreme Court considered state law imposing
penalties for federal alien registration violations, “[p]ermitting the State to
impose its own penalties . . . would conflict with the careful framework
Congress adopted.” Arizona, 567 U.S. at ___, 132 S. Ct. at 2502.
Further, it would impermissibly divest “federal authorities of the
exclusive power to prosecute these crimes.” Valle del Sol Inc. v. Whiting,
732 F.3d 1006, 1027 (9th Cir. 2013); see Ga. Latino All., 691 F.3d at
1267 (finding a Georgia statute, which “layer[ed] additional penalties
atop federal [immigration] law,” preempted). As noted by the United
States Supreme Court, under such mirror-image enforcement “the State
would have the power to bring criminal charges against individuals for
violating a federal law even in circumstances where federal officials in
30
charge of the comprehensive scheme determine that prosecution would
frustrate federal policies.” Arizona, 567 U.S. at ___, 132 S. Ct. at 2503.
E. Application of Preemption Principles to Prosecution of
Martinez Under Iowa’s Identity Theft Statute.
1. Facial preemption. Unlike Iowa Code section 715A.2(2)(a)(4),
Iowa’s identity theft statute, Iowa Code section 715A.8, does not directly
track the language of federal immigration law. Because the identity theft
statute has a potentially broader application outside the immigration
context, it is not facially preempted by federal immigration law. An
unauthorized alien who committed identity theft outside the field
occupied by federal immigration law could be prosecuted under state
law. For example, identity theft to defraud a bank by an unauthorized
alien would not be preempted by federal immigration law and
prosecution of an alien for such a crime would be well within the
traditional police power of the states. Further, many persons may be
prosecuted under the statute who are not aliens but are United States
citizens. While enforcement of identity theft may be preempted by federal
immigration law in some contexts, it is only preempted to the extent it
intrudes upon, interferes, or is an obstacle to the implementation of
federal immigration law. See Puente Ariz., 821 F.3d at 1106.
2. Field preemption as applied to Martinez. While the identity theft
statute is not preempted in all its applications, that is not the end of the
analysis. As noted in Gade v. National Solid Waste Management
Association, a statute “is not saved from pre-emption simply because the
State can demonstrate some additional effect outside of the [preempted
area].” 505 U.S. 88, 107, 112 S. Ct. 2374, 2388 (1992). The notion a
statute may be preempted in some of its applications was recognized by
the United States Supreme Court in Hillman v. Maretta, 569 U.S. ___,
31
133 S. Ct. 1943 (2013). In Hillman, the Court held that a particular
Virginia statute would be preempted only as applied to federal
employees. Id. at ___, 133 S. Ct. at 1955. The notion that state statutes
may be preempted as applied has been utilized in the immigration law
context. See Brewer, 757 F.3d. at 1062.
We now turn to the question of whether the statute is field
preempted as applied in this case. Here, the only factual basis for the
State’s charge that Martinez used false identity documents “to obtain
credit, property, and services”—an essential element in the crime of
identity theft—is the allegation that Martinez obtained unauthorized
employment.
The Iowa identity theft statute is preempted to the extent it
regulates fraud committed to allow an unauthorized alien to work in the
United States in violation of federal immigration law. The IRCA is a
comprehensive statute that brought regulation of alien employment
under the umbrella of federal immigration policy. See Hoffman Plastic,
535 U.S. at 147, 122 S. Ct. at 1282. Under its comprehensive scheme,
Congress made employers primarily responsible for preventing
unauthorized aliens from obtaining employment.
To the extent federal immigration authorities choose to proceed
with sanctions against unauthorized aliens, the IRCA establishes a
comprehensive regime of criminal, civil, and immigration related
consequences. See, e.g., 8 U.S.C. § 1324c; 18 U.S.C. § 1546. These
multiple sanctions establish a system that can work as a “harmonious
whole.” Valle del Sol, 732 F.3d at 1025. Because the federal immigration
law occupies the field regarding the employment of unauthorized aliens,
the State in this case cannot prosecute Martinez for identity theft related
to false documentation supplied to her employer as an unauthorized
32
alien. She may, of course, be subject to prosecution under 8 U.S.C.
§ 1324c and 18 U.S.C. § 1546. Any such prosecution rests in the
discretion of federal prosecutors.
The United States Supreme Court’s approach in Arizona supports
our analysis. In Arizona, the United States Supreme Court held that the
federal plan related to alien registration was “a single integrated and all-
embracing system” designed as a “harmonious whole” with a “full set of
standards . . . including punishment for noncompliance.” 567 U.S. at
___, 132 S. Ct. at 2501–02 (quoting Hines, 312 U.S. at 72, 74, 61 S. Ct.
at 407–08). Here, the same can be said for the field of unauthorized
employment of aliens. Congress has dominated the field and because
Congress has “adopted a calibrated framework within the INA to address
this issue,” any “state’s attempt to intrude into this area is prohibited.”
Ga. Latino All., 691 F.3d at 1264. The federal government occupies the
field and “even complementary state regulation is impermissible.”
Arizona, 567 U.S. at ___, 132 S. Ct. at 2502.
3. Conflict preemption as applied to Martinez. We also conclude
that enforcement of Iowa’s identity theft statute is conflict preempted in
this case. Any prosecution under the Iowa identity theft statute
frustrates congressional purpose and provides an obstacle to the
implementation of federal immigration policy by usurping federal
enforcement discretion in the field of unauthorized employment of aliens.
See id. at ___, 132 S. Ct. at 2501. As further noted in Arizona, a conflict
in technique can be as fully disruptive to the system Congress enacted as
conflict in overt policy. Id. at ___, 132 S. Ct. at 2505. A state statute is
preempted when it stands “as an obstacle to the accomplishment and
execution of the full purposes and objectives of Congress.” Id. (quoting
Hines, 312 U.S. at 67, 61 S. Ct. at 404).
33
Additionally, the full purposes and objectives of Congress in the
employment of unlawful immigrants include the establishment of a
comprehensive federal system of control with a unified discretionary
enforcement regime. As noted in South Carolina, it is the prerogative of
federal officials to police work authorization fraud by aliens. 720 F.3d at
533. Federal discretion in the enforcement of immigration law is
essential to its implementation as a harmonious whole. The reasons for
exercise of federal discretion are varied. Federal officials often rely upon
unauthorized aliens to build criminal cases involving drugs or human
traffickers. The risk faced by unauthorized aliens being subject to
violations of labor laws by exploiting employers is a discretionary factor
to be taken into account by federal officials. Arizona, 567 U.S. at ___,
132 S. Ct. at 2504. Enforcement may be affected by foreign affairs or a
need to account for reciprocal enforcement in other countries. Id. at ___,
132 S. Ct. at 2498. As Justice Kennedy noted in Arizona, “Discretion in
the enforcement of immigration law embraces immediate human
concerns. Unauthorized workers trying to support their families, for
example, likely pose less danger than . . . aliens who commit a serious
crime.” Id. at ___, 132 S. Ct. at 2499.
Local enforcement of laws regulating employment of unauthorized
aliens would result in a patchwork of inconsistent enforcement that
would undermine the harmonious whole of national immigration law.
This case is a classic demonstration of why preemption is necessary.
Federal authorities in this case appear to be willing to defer any potential
federal immigration action on equitable and humanitarian grounds.
Martinez came to the United States as a child, an illegal entry for which
she is not personally responsible. She was educated in Iowa, has no
criminal record, is a productive member of the community, and now has
34
four children who are citizens of the United States. Federal immigration
authorities routinely take these equitable and humanitarian
considerations into account in the enforcement of immigration law.
Federal enforcement officials might well weigh the fact that a mother
would be separated from her four children who are United States citizens
as a very undesirable result.
Further, Martinez stepped forward as part of a federal program,
DACA. She provided relevant immigration authorities with information
and was granted deferred status. Federal authorities might blanch at
prosecuting a person who in good faith responded to their invitation to
come out of the shadows for deferred action. See Brewer, 757 F.3d at
1063 (citing the practical effect of Arizona policy being DACA recipients
were barred from working).
The state prosecutor in this case, however, seems to have a
different philosophy and, as reflected in the charging decision to seek
Martinez’s conviction on two felonies, exposed her to a significant Iowa
prison term and removal from the country. If such local exercise of
prosecutorial discretion were permitted, the harmonious system of
federal immigration law related to unauthorized employment would
literally be destroyed.
Allowing Iowa to enforce its identity theft statute in the context of
the employment of an unauthorized alien conflicts with Congress’s
chosen method of enforcement. See Arizona, 567 U.S. at ___, 132 S. Ct.
at 2505. Federal prosecution of immigration crimes are brought by the
appropriate United States Attorney. United States Attorneys exercise
their discretion in a manner consistent with the established priorities of
the administrations they serve. Ga. Latino All., 691 F.3d at 1265.
Although federal law allows state–federal cooperative enforcement by
35
agreement under certain circumstances, there is no applicable
agreement here. See 8 U.S.C. § 1357(g)(1). Allowing state prosecutors to
pursue identity theft criminal prosecutions in which the crimes are
based on unlawful employment by unauthorized aliens would threaten
uniform application of immigration law. See Ga. Latino All., 691 F.3d at
1266.
III. Conclusion.
For the above reasons, we reverse the decision of the district court
and remand the case for entry of an order of dismissal.
REVERSED AND REMANDED WITH DIRECTIONS.
Cady, C.J., Wiggins and Hecht, JJ., join this opinion. Cady, C.J.,
files a special concurrence in which Wiggins, J., joins. Wiggins, J., files a
separate special concurrence. Mansfield, Waterman, and Zager, JJ.,
dissent.
36
#15–0671, State v. Martinez
CADY, Chief Justice (concurring specially).
I join the opinion of the court. I write separately to elaborate on
the principles it expresses.
The State uses two criminal laws to prosecute Martha Martinez.
One is the crime of identity theft. The other is the crime of forgery. The
question is whether the prosecution of an unauthorized alien for these
crimes in the manner pursued in this case violates the federal
preemption doctrine.
Without question the authority to regulate immigration is
“exclusively a federal power.” De Canas v. Bica, 424 U.S. 351, 354, 96
S. Ct. 933, 936 (1976). Moreover, under the Immigration Reform and
Control Act, Congress has clearly decided not to impose criminal
penalties on aliens who seek or engage in unauthorized employment.
Arizona v. United States, 567 U.S. 387, ___, 132 S. Ct. 2492, 2505 (2012).
Any state law contrary to this approach is an impediment to the
regulatory power of Congress and contrary to the Supremacy Clause of
the United States. See id. Thus, no state may impose criminal penalties
on unauthorized employees.
The crime of identity theft does not conflict with the federal
preemption doctrine on its face. It criminalizes the fraudulent use of
identification information of another “with intent to obtain credit,
property, services, or other benefits.” Iowa Code § 715A.8(2) (2013). This
crime is elevated from an aggravated misdemeanor to a felony when the
value of the credit, property, services, or other benefit obtained exceeds
$1000. Id. § 715A.8(3). Identity theft is a serious crime, and states are
normally free to prosecute violators, whether citizens or aliens.
37
Yet, the State in this case has not just prosecuted an unauthorized
alien for using false information, but has prosecuted the unauthorized
alien for using the false information to obtain employment and to earn
wages from that employment. Consequently, the State has used the law
in a way to criminalize the conduct of an unauthorized alien who applied
for and obtained a job with false identification and earned wages from
the job. While the State could use the crime to prosecute an
unauthorized alien for a variety of conduct related to identity theft, the
conduct here is tied to a narrow area controlled by Congress.
It is important to observe that the United States of America is
bound together by shared constitutional values. These national values
are protected by the preemption doctrine from state laws that directly
contravene them, just as they are protected from state laws that would
work against them in less obvious ways. Courts have played a critical
role in seeing through state laws that may appear neutral and benign on
their face, but work subtly or indirectly to violate a fundamental precept
of our Federal Constitution. This has been observed in a variety of areas.
For example, courts have been vigilant to strike down state laws that
indirectly interfere with the right to vote, just as they would with state
laws that would attempt to do so directly. See Harper v. Va. State Bd. of
Elections, 383 U.S. 663, 668–69, 86 S. Ct. 1079, 1082 (1966). Likewise,
in the area of discrimination, the Court has long held,
Though the [state] law itself be fair on its face, and impartial
in appearance, yet, if it is applied and administered by
public authority with an evil eye and an unequal hand, so as
practically to make unjust and illegal discriminations
between persons in similar circumstances, material to their
rights, the denial of equal justice is still within the
prohibition of the constitution.
38
Yick Wo v. Hopkins, 118 U.S. 356, 373–74, 6 S. Ct. 1064, 1073 (1886).
Simply put, “The Constitution does not make judicial observance or
enforcement of its basic guaranties depend on whether their violation
appears from the face of legislation or only from its application to proven
facts.” Yakus v. United States, 321 U.S. 414, 484, 64 S. Ct. 660, 696
(1944) (Rutledge, J., dissenting).
In this case, the crime requires the job applicant to secure
employment and begin earning wages in order to satisfy the criminal
element of value. See Iowa Code § 715A.8(3). The State argues the law
is permissibly intended to protect potential victims of identity theft, but
“any state law, however clearly within a State’s acknowledged power,
which interferes with or is contrary to federal law, must yield.” Free v.
Bland, 369 U.S. 663, 666, 82 S. Ct. 1089, 1092 (1962); see also
Henderson v. Mayor of N.Y., 92 U.S. 259, 272 (1875) (“[N]o definition of
[the state police power], and no urgency for its use, can authorize a State
to exercise it in regard to a subject-matter which has been confided
exclusively to the discretion of Congress by the Constitution.”).
The identity theft law may not specifically target unauthorized
workers or be the full frontal assault on the employment of unauthorized
aliens found prohibited in Arizona, 567 U.S. at ___, 132 S. Ct. at 2505,
but the outcome, nevertheless, is not saved from the doctrine of federal
preemption. See Gade v. Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88,
105, 112 S. Ct. 2374, 2386–87 (1992) (“Although ‘part of the pre-empted
field is defined by reference to the purpose of the state law in
question, . . . another part of the field is defined by the state law’s actual
effect.’ ” (alteration in original) (quoting English v. Gen. Elec. Co., 496
U.S. 72, 84, 110 S. Ct. 2270, 2278 (1990)). As applied to unauthorized
aliens who use identification information in seeking employment, the law
39
interferes with the efforts of Congress to regulate matters governing
unauthorized alien employees every bit as it interfered in Arizona.
The crime of forgery as used in this case also violates the
preemption doctrine. This result is only more obvious. The holding in
Arizona discussing a state alien registration statute needs only a few
words changed to illustrate the conflict with the preemption doctrine in
this case:
[Iowa] contends that [Iowa Code section
715A.2(2)(a)(4)] can survive preemption because the
provision has the same aim as federal law and adopts its
substantive standards. This argument not only ignores the
basic premise of field preemption—that States may not enter,
in any respect, an area the Federal Government has reserved
for itself—but also is unpersuasive on its own terms.
Permitting the State to impose its own penalties for the
federal offenses here would conflict with the careful
framework Congress adopted.
Arizona, 567 U.S. at ___, 132 S. Ct. at 2502. By imposing state criminal
penalties for “forgery . . . to [obtain] employment” on top of the existing
federal system regulating the employment of aliens, Iowa Code section
715A.2(2)(a)(4) robs the federal government of the discretion it has so
carefully reserved. It may not do so. That discretion, ever decreasing in
its availability, see Padilla v. Kentucky, 559 U.S. 356, 363–64, 130 S. Ct.
1473, 1480 (2010), is crucial to the federal scheme. See Arizona, 567
U.S. at ___, 132 S. Ct. at 2499 (“Discretion in the enforcement of
immigration law embraces immediate human concerns.”); Gabriel J. Chin
& Marc L. Miller, Broken Mirror: The Unconstitutional Foundations of New
State Immigration Enforcement, in Strange Neighbors: The Role of States in
Immigration Policy 167, 170 (Carissa Byrne Hessick & Gabriel J. Chin,
eds. 2014) (“[T]he discretion inherent in the federal immigration regime,
and in federal criminal enforcement more generally—the power to charge
or not, to decide what to charge, and to choose whether to pursue civil or
40
administrative measures—is itself a fundamental part of the law of
immigration.”). State authority is limited by “the scope of [its] police
powers.” Fla. Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 146,
83 S. Ct. 1210, 1219 (1963). No definition of the State of Iowa’s police
powers would authorize it to regulate immigration. See Henderson, 92
U.S. at 272.
These state laws, whether by design or effect, have intruded in an
area wholly occupied by the federal government. They are therefore
preempted by Article VI, Clause 2 of the U.S. Constitution.
Wiggins, J., joins this special concurrence.
41
#15–0671, State v. Martinez
WIGGINS, Justice (specially concurring).
I join the majority opinion and write separately to emphasize the
issue of prosecutorial discretion.
Martha Aracely Martinez was born in Mexico. Her parents brought
her to Muscatine, Iowa, when she was eleven years old. It was not her
choice to come here. Since then, she has lived in Muscatine, attended
local schools, and worked in the community. When her parents brought
her to the United States, she did not have a lawful immigration status.
Because she had no immigration status, she could not lawfully obtain a
driver’s license or lawful employment when she became old enough to do
so.
When she was seventeen years old, Martinez used fictitious
documents to acquire an Iowa driver’s license, which in turn, she used to
obtain employment. She was a model citizen, contributing member of
the community, and employed for thirteen years. After Deferred Action
for Childhood Arrivals (DACA) 2 protection coaxed Martinez from the
shadow of deportation to acquire lawful immigration status and work
authorization, the Muscatine County Attorney charged her with crimes
for previously using the fictitious documents to obtain a license and
employment. Importantly, there is nothing in the record to indicate that
her use of the fictitious documents caused anyone harm.
As Martinez approached adulthood, she had to figure out a way to
survive in a country her parents brought her to as a child. This country
2Memorandum from Janet Napolitano, Sec’y of U.S. Dep’t of Homeland Sec. to
David L. Aguilar, Acting Comm’r, U.S. Customs & Border Prot.; Alejandro Mayorkas,
Dir., U.S. Citizenship & Immigration Servs.; and John Morton, Dir., U.S. Immigration &
Customs Enf’t (June 15, 2012), http://www.dhs.gov/xlibrary/assets/s1-exercising-
prosecutorial-discretion-individuals-who-came-to-us-as-children.pdf.
42
is the only country she knew. She chose to support herself and her
children by participating in the legal economy. She did not have any
other good choices. One bad choice would be to support herself and her
family by engaging in illegal activities. Another would be to support
herself by participating in the underground economy. If she did get
involved in either the illegal or the underground economy, she could have
become a victim of human trafficking. See Dina Francesca Haynes,
Exploitation Nation: The Thin and Grey Legal Lines Between Trafficked
Persons and Abused Migrant Laborers, 23 Notre Dame J.L. Ethics & Pub.
Pol’y 1, 44–45 (2009). Yet, another choice would be to return to a
country that was never her home.
When DACA became available, Martinez came forward to obtain
legal immigration status and proper work authorization. At each step, it
seems, Martinez attempted to do right in difficult circumstances created
by her parents when she was only a child. According to the record and
by all measures, Martinez has been a valuable contributor to her
community and our state. At the time the county attorney decided to
exercise his discretion to file charges, she had three young children and
was pregnant with her fourth child. At the time he filed the charges, the
county attorney knew there was a good chance Martinez could be
deported, which would force her children, three American citizens, to
leave the country or stay here and fend on their own.
The county attorney “is an administrator of justice, an advocate,
and an officer of the court.” ABA Standards for Criminal Justice:
Prosecution Function and Defense Function 3-1.2(b), at 4 (3d ed. 1993)
[hereinafter ABA Standards]. As Judge Weinstein noted over thirty years
ago,
43
[a]ny ethical and procedural obligation of a private attorney
to be fair to opponents and candid with the court is
enforceable when the litigant is represented by an attorney
for the government. As a United States Attorney General put
it more than a hundred years ago, “in the performance of . . .
his duty . . . he is not a counsel giving advice to the
government as his client, but a public officer, acting
judicially, under all the solemn responsibilities of conscience
and legal obligations.”
Zimmerman v. Schweiker, 575 F. Supp. 1436, 1440 (E.D.N.Y. 1983)
(quoting Office & Duties of Att’y Gen. 6 Op. Att’y Gen. 326, 334 (1854)).
Further, the county attorney “must exercise sound discretion in
the performance of his or her functions.” ABA Standards 3-1.2(b), at 4.
As an administrator of justice, the county attorney has significant power,
and with it, must use appropriate restraint. The county attorney has a
duty to “seek justice, not merely convict.” Id. 3-1.2(c), at 4.
Ultimately, however, Congress vests the United States government
with the discretion to prosecute persons in similar situations as
Martinez, not the ninety-nine local county attorneys in our state. It is up
to the United States government to exercise its discretion appropriately
and seek justice.
44
#15–0671, State v. Martinez
MANSFIELD, Justice (dissenting).
I respectfully dissent.
The court has established an exemption from generally applicable
Iowa law for the exclusive benefit of unauthorized aliens seeking
employment in our state. Under the majority’s ruling, an American
citizen who works in Iowa under a false name because she is being
chased by a bill collector and wants to avoid garnishment can be
prosecuted, but a foreign national who works in Iowa under a false name
to avoid detection is immune. That is the wrong reading of federal
preemption.
The correct reading comes from the district court, which denied
Martha Martinez’s motion to dismiss and provided the following
straightforward explanation:
[I]dentify theft and forgery are state crimes independent of
the Defendant’s immigration status. In this prosecution, the
State takes no action to enforce or attack [the Immigration
Reform and Control Act]. The State’s sole interest is the
protection of citizens from identity theft and to protect
employers from persons who apply for employment under
false names and forge signatures of the names of persons
whose identities they have stolen.
I agree with the district court’s reasoning and would affirm.
Although the majority tries to justify its decision based on field
preemption and conflict preemption, neither doctrine can sustain its
ruling. In the critical part of the majority opinion (i.e., the end of it
where the actual legal analysis occurs), my colleagues quote cases out of
context and paraphrase cases as saying things they don’t actually say.
Let me give one example from field preemption and another from
conflict preemption. The majority today concludes that Congress has
occupied the field of employment of unauthorized aliens, thus precluding
45
the states from enforcing their generally applicable laws, such as identity
theft. I am unaware of any other court that has so held. From reading
Part II.E.2 of the court’s opinion, though, one might get the impression
that Georgia Latino Alliance for Human Rights v. Governor of Georgia, 691
F.3d 1250 (11th Cir. 2012), found field preemption as to employment of
unauthorized aliens and therefore supports today’s decision.
One would be wrong. Georgia Latino actually found that Congress
had occupied the field of unlawful transport and movement of aliens—
not employment. Ga. Latino, 691 F.3d at 1264. That’s a big difference.
Turning to conflict preemption, in Part II.E.3 the court cites and
relies upon United States v. South Carolina, 720 F.3d 518 (4th Cir. 2013).
The court asserts that this case holds “it is the prerogative of federal
officials to police work authorization fraud by aliens.” But South Carolina
says no such thing. The state-law crime there involved displaying or
possessing false documents “for the purpose of proving lawful presence
in the United States.” Id. at 532. Presence in the United States,
naturally, is a particular concern of the government of the United States.
That isn’t what this case is about. It is about using a false Iowa
identification card to obtain employment from an Iowa employer.
To put today’s decision into context, it is helpful to compare it to a
recent decision of the United States Court of Appeals for the Ninth
Circuit. Recently, the Ninth Circuit held that Arizona’s policy of denying
drivers’ licenses to all persons protected by the Obama Administration’s
Deferred Action for Childhood Arrivals (DACA) program was preempted
by federal law. See Ariz. Dream Act Coal. v. Brewer, 818 F.3d 901, 917
(9th Cir. 2016), amended by 855 F.3d 957 (9th Cir. 2017), petition for
cert. filed, 85 U.S.L.W. 3471 (U.S. Mar. 29, 2017) (No. 16–1180). This
has sparked disagreement. Dissenting from the denial of rehearing en
46
banc, six judges of that court noted that DACA had not been approved by
Congress but was just the President’s “commitment not to deport.” Ariz.
Dream Act Coal., 855 F.3d at 958 (Kozinski, J., dissenting from the denial
of rehearing en banc). They asked, “Does the Supremacy Clause
nevertheless force Arizona to issue drivers’ licenses to the recipients of
the President’s largesse?” Id. They characterized the Ninth Circuit panel
opinion as relying on a “puzzling new preemption theory.” Id.
Today’s decision goes much farther than that “puzzling” Ninth
Circuit decision. Instead of giving the benefits of preemption to people
whom the Obama Administration affirmatively exercised its discretion to
protect, as the Ninth Circuit did in Arizona Dream Act Coalition, the court
today gives the benefits of preemption to someone on whose behalf the
Obama Administration declined to exercise its discretion—namely, a
person who has committed identity fraud and forgery.
In order to be eligible for deferred status under DACA, an
individual must not have been convicted of any felony offense (or
misdemeanor punishable by more than one year in prison) in the United
States. See Memorandum from Janet Napolitano, Sec’y of U.S. Dep’t of
Homeland Sec. to David L. Aguilar, Acting Comm’r, U.S. Customs &
Border Prot.; Alejandro Mayorkas, Dir., U.S. Citizenship & Immigration
Servs.; and John Morton, Dir., U.S. Immigration & Customs Enf’t
(June 15, 2012), http://www.dhs.gov/xlibrary/assets/s1-exercising-
prosecutorial-discretion-individuals-who-came-to-us-as-children.pdf.
According to the Department of Homeland Security’s website, any
conviction under federal, state, or local law qualifies, and only
“[i]mmigration-related offenses” are excluded. See U.S. Citizenship &
Immigration Servs., Dep’t of Homeland Sec., DACA Toolkit,
p. 23-24, https://www.uscis.gov/sites/default/files/USCIS/Humanitari
47
an/Deferred%20Action%20for%20Childhood%20Arrivals/DACA-toolkit.
pdf (last visited June 2, 2017).
Thus, under DACA, state-law convictions for identity theft or
forgery are disqualifying. Yet if the Department of Homeland Security did
not believe state-law identity theft or forgery charges should prevent an
unauthorized alien who arrived as a child from remaining in this
country, it could have easily so provided in DACA. It did not. The court
thus constructs a preemption theory today on behalf of someone whom
the federal executive branch exercised its discretion to decline to protect.
Let me make the same point a different way. Since “federal
discretion” appears to be the core basis for the court’s preemption
decision, one would expect the court to cite some statement, from some
federal official, in some administration expressing the view that states
should not prosecute identity theft and forgery by unauthorized aliens
seeking employment. That might demonstrate that Iowa was doing
something at odds with federal law enforcement. But the court cites no
such statement.
Simply stated, the majority’s approach is not preemption under
any cognizable legal doctrine. It is not field preemption. It is not conflict
preemption. It is, at best, gestalt preemption. 3
I. Today’s Decision Is Contrary to Precedent, Including
Decisions of the United States Court of Appeals for the Ninth Circuit
and Appellate Courts in Kansas and Missouri.
Five years ago, in Arizona v. United States, the Supreme Court
found that several provisions of a recently enacted Arizona law (S.B.
3In explaining the court’s theory of preemption, the first special concurrence
analogizes this case to “state laws that indirectly interfere with the right to vote.” Such
an analogy is off the mark. Citizens have a constitutional right to vote. Unauthorized
aliens do not have a constitutional right to work in the United States under a false
name.
48
1070) were preempted by federal immigration law. See 567 U.S. 387,
___, 132 S. Ct. 2492, 2510 (2012). The stated purpose of S.B. 1070 was
to “discourage and deter the unlawful entry and presence of aliens and
economic activity by persons unlawfully present in the United States.”
Id. at ___, 132 S. Ct. at 2497 (quoting note following Ariz. Rev. Stat. Ann.
§ 11–1051 (West 2012)). Two of the four challenged provisions of S.B.
1070 warrant discussion here. Section 3 set forth a new state law
misdemeanor consisting of the “willful failure to complete or carry an
alien registration document . . . in violation of 8 United States Code
§ 1304(e) or 1306(a).” Id. at ___, 132 S. Ct. at 2501 (quoting Ariz. Rev.
Stat. Ann. § 11–1509(A) (West Supp. 2011)). Section 5(C) made it a state
law misdemeanor for “an unauthorized alien to knowingly apply for work,
solicit work in a public place or perform work as an employee or
independent contractor” in Arizona. Id. at ___, 132 S. Ct. at 2503(quoting Ariz. Rev. Stat. Ann. § 13–2928(C)).
The Court found that section 3 was subject to field preemption. Id.at ___, 132 S. Ct. at 2503. The Court noted that federal law related to
alien registration provided a “full set of standards” and was designed as a
“harmonious whole.” Id. at ___, 132 S. Ct. at 2502 (quoting Hines v.
Davidowitz, 312 U.S. 52, 72, 61 S. Ct. 399, 407 (1941)). The federal
framework also included criminal punishment for noncompliance. See 8
U.S.C. §§ 1304(e), 1306(a) (2012). Accordingly, the Court determined the
federal government had completely “occupied the field of alien
registration.” Id. at ___, 132 S. Ct. at 2502.
The Court continued, “Where Congress occupies an entire field, as
it has in the field of alien registration, even complementary state
regulation is impermissible.” Id. Thus, even though Section 3 only
criminalized activity that was already a federal crime, the federal
49
government’s occupation of the field of alien registration meant that
Arizona “may not enter, in any respect,” that field. Id. at ___, 132 S. Ct.
at 2502 (“Field preemption reflects a congressional decision to foreclose
any state regulation in the area, even if it is parallel to federal
standards.”). 4
As to section 5(C) of S.B. 1070, the federal government argued
conflict preemption, and the Court agreed. Id. at ___, ___, 132 S. Ct. at
2503, 2505. As the Court explained, persons who violate provisions of
the Immigration Reform and Control Act of 1986 (IRCA) by engaging in
unauthorized employment are subject to civil penalties, such as losing
their eligibility to have permanent status adjusted, or being removed
from the country. Id. at ___, 132 S. Ct. at 2504 (discussing 8 U.S.C.
§§ 1255(c), 1227(a)(1)). However, the IRCA does not “impose federal
criminal sanctions on the employee side.” Id. In the Court’s view,
Congress made a “deliberate choice” not to impose criminal penalties on
persons who merely seek or engage in unauthorized employment. Id.“Although § 5(C) attempts to achieve one of the same goals as federal
law—the deterrence of unlawful employment—it involves a conflict in the
method of enforcement.” Id. at___, 132 S. Ct. at 2505.
The Court therefore determined that section 5(C) “interfere[s] with
the careful balance struck by Congress with respect to unauthorized
employment of aliens.” Id. The Court found that section 5(C) was
4The first special concurrence conflates this part of the Supreme Court’s
decision with the part dealing with employment of unauthorized aliens. Specifically, to
support its claim of field preemption, the first special concurrence provides a block
quotation from the Court’s discussion of section 3 of S.B. 1070, urging that this
“holding . . . needs only a few words changed to illustrate the conflict with the
preemption doctrine in this case.” But the Arizona language in question relates to alien
registration, not alien employment, and thus has nothing to do with the present case.
See 567 U.S. at ___, 132 S. Ct. at 2502.
50
preempted by federal law because it was “inconsistent with federal policy
and objectives” and “an obstacle to the regulatory system Congress
chose.” Id. at ___, 132 S. Ct. at 2504–05.
Our case involves neither of the two situations identified in
Arizona. The State is not attempting to prosecute either (1) a failure to
comply with alien registration or (2) a mere attempt by an unauthorized
alien to secure employment. The present case involves, rather, the use of
a false Iowa identification to obtain the benefit of employment in Iowa.5
Since Arizona was decided, three reported appellate cases, one
federal and two state, have addressed our situation. None of them agrees
with today’s ruling.
In Puente Arizona v. Arpaio, the plaintiffs mounted a facial
challenge to two Arizona identity theft laws as preempted by the IRCA.
See 821 F.3d 1098, 1102 (9th Cir. 2016). The first statute prohibited
“using the information of another (real or fictitious) person ‘with the
intent to obtain employment.’ ” Id. (quoting Ariz. Rev. Stat. § 13–2009).
The second statute was an expansion on the general identity theft
statute, enacted in order to “also reach employment-related identity
theft.” Id. The Ninth Circuit applied a presumption against preemption,
reasoning that “while the identity theft laws certainly have effects in the
area of immigration, the text of the laws regulate for the health and
safety of the people of Arizona.” Id. at 1104.
The Ninth Circuit thus concluded that neither statute was field or
conflict preempted on its face by the IRCA. Id. In so holding, the court
5The first special concurrence relies on Arizona for the proposition that “no state
may impose criminal penalties on unauthorized employees.” As I have explained, that
is not a holding of the case. Rather, Arizona holds that states may not criminalize the
mere act of seeking or holding employment by an unauthorized alien. Id. at ___, 132
S. Ct. at 2505–06. The Iowa laws at issue do not do this.
51
emphasized that “the identity theft laws are textually neutral—that is,
they apply to unauthorized aliens, authorized aliens, and U.S. citizens
alike.” Id. at 1105. In other words, “one could not tell that the identity
theft laws undermine federal immigration policy by looking at the text
itself.” Id. Because the statutes at issue “make it a crime for ‘any
person’ to use a false document to gain employment,” the court said that
cases like Arizona are “easily distinguishable” and “do not control here.”
Id. at 1107 (emphasis added).
As a result, the court instead focused on the effect of the statutes
to determine “if the state encroached on an area Congress intended to
reserve.” Id. at 1106. Considering the statutes were generally applicable
to any person who uses another’s identity for any reason—immigration
or nonimmigration—the court reasoned,
Congress could not have intended to preempt the state from
sanctioning crimes that protect citizens of the state under
Arizona’s traditional police powers without intruding on
federal immigration policy. Thus, we hold that despite the
state legislative history, Congress did not intend to preempt
state criminal statutes like the identity theft laws.
Id. The court emphasized that this was not a case where “the statutory
language singles out unauthorized aliens.” Id. at 1107.
After the Ninth Circuit weighed in and rejected the facial challenge,
the Puente Arizona litigation continued in district court. On November
22, 2016, in ruling on cross-motions for summary judgment, the district
court held that Arizona’s laws criminalizing identity theft for purposes of
obtaining employment were not preempted as applied for the most part.
Puente Ariz. v. Arpaio, No. CV–14–01356–PHX–DGC, 2016 WL 6873294,
at *10–11, *16 (D. Ariz. Nov. 22, 2016). The court excepted only the
approximately 10 percent of cases where the state had used the Form I-9
and attached documents to investigate or prosecute the case. See id. at
52
*12–13. 6
Last year, in State v. Ochoa-Lara, the Kansas Court of Appeals held
that a state prosecution of identity theft, based on the unlawful use of
another’s social security number to gain employment, was not preempted
by the IRCA. 362 P.3d 606, 612 (Kan. Ct. App. 2016), review granted
(Oct. 21, 2016). The court emphasized that the laws in question were
neutrally worded and prohibited using the personal identification of
another with the intent to defraud in order to receive a benefit. Id. at
611. The court recognized “Kansas’ historic police power to prosecute
identity thieves.” Id. The court concluded that “the possible illegal uses
of another’s Social Security number are myriad” and “[t]here is nothing
in the IRCA that suggests that Congress intended the comprehensive
preemption of the police powers of the State to prosecute all such
instances of identity theft.” Id. at 612.
Likewise, in State v. Diaz-Rey, the Missouri Court of Appeals
rejected a preemption defense to a forgery charge based on the use of a
false social security card to obtain employment. 397 S.W.3d 5, 10 (Mo.
Ct. App. 2013). In finding the law not subject to field preemption, the
court reasoned that it was
a state law of general applicability that uniformly applies to
all persons as members of the general public, and makes no
distinction between aliens and non-aliens. As a general
matter, such laws are not preempted simply because a class
of persons subject to federal regulation may be affected.
Id. at 9. The court also concluded that conflict preemption did not apply
because
[u]nlike section 5(C) of the Arizona statute, section
570.090 does not criminalize activity that Congress has
6I discuss the I-9 exemption below.
53
decided not to criminalize. Rather, as charged in this case, it
criminalizes the use of inauthentic writings or items as
genuine with knowledge and intent to defraud. Thus,
section 570.090 does not stand as an obstacle to Congress’s
purpose in enacting IRCA.
Id. at 10 (citation omitted).
In this case, the State charged Martinez with forgery and identity
theft in violation of Iowa Code sections 715A.2(1)(c) and 715A.8(2) (2013).
Both charges stemmed from Martinez’s use of Diana Castaneda’s identity
to work at Packers Sanitation. Because Martinez had used the
Castaneda documents to secure employment, the forgery charge was
elevated to a class “D” felony. See id. § 715A.2(2)(a)(4). Furthermore, the
identity theft charge was treated as a class “D” felony because earnings
statements from Packers Sanitation indicated Martinez had been paid
more than $1000 from January to June 2013. See id. § 715A.8(3).
Like the statutes at issue in the Kansas and Missouri cases, both
misdemeanor forgery under Iowa Code section 715A.2 and identity theft
under Iowa Code section 715A.8 are broad-based, neutral laws. They
cover certain categories of fraudulent conduct and operate in an area of
traditional state police power. For example, the earliest Iowa Codes
would have criminalized the conduct that Martinez was alleged to have
engaged in here. See Iowa Code § 2627 (1851) (relating to uttering forged
instruments).
Notably, our nation has no federal identity card. Driver’s licenses
and nonoperator identification cards are an area of traditional state
concern. See Koterba v. Commonwealth, 736 A.2d 761, 765 (Pa. Commw.
Ct. 1999) (“[T]he issuance [and denial] of driver’s licenses is a function
traditionally exercised by the individual state governments.” (Second
alteration in original.)). Iowa has a legitimate state interest in the
integrity of its own state-issued forms of identification and avoiding their
54
misuse. There is no indication in the IRCA or elsewhere that state
prosecutions for use of false state identity documents would undermine a
congressional objective such that persons who use those documents to
obtain work should receive a “hands off” from state criminal law.
II. Express Preemption Based on 8 U.S.C. § 1324a(b)(5) Does
Not Apply Here.
When Martinez began working at Packers Sanitation, she
completed a Form I-9, titled “Employment Eligibility Verification.” At
that time, Martinez provided the Iowa identification card in Diana
Castaneda’s name but bearing Martinez’s photo as well as the social
security card in Castaneda’s name. Copies of these documents were
retained by the employer and obtained by DOT in their investigation.
Federal law provides with respect to the I-9,
Limitation on use of attestation form
A form designated or established by the Attorney
General under this subsection [the 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 language clearly prohibits a state prosecution based on false
statements within the I-9 form itself. However, two courts have read the
language as not foreclosing state prosecutions for the display of false
documents when the I-9 is completed, even if the employer retains copies
of the false documents and attaches them to the I-9. In State v. Reynua,
the Minnesota Court of Appeals decided that a state perjury prosecution
based on false statements on an I-9 was preempted but declined to find
preemption of a simple-forgery charge due to presentation of a false
Minnesota identification card. See 807 N.W.2d 473, 480–81 (Minn. Ct.
App. 2011). The court concluded, “[W]e cannot read this provision so
55
broadly as to preempt a state from enforcing its laws relating to its own
identification documents.” Id. The court reasoned,
[Section 1324a(b)(5)] does not exhibit a “clear and manifest
purpose” to bar enforcement of state laws pertaining to state
identification cards. It would be a significant limitation on
state powers to preempt prosecution of state laws prohibiting
falsification of state-issued identification cards, let alone to
prohibit all use of such cards merely because they are also
used to support the federal employment-verification
application.
Id. at 481 (quoting Altria Grp., Inc. v. Good, 555 U.S. 70, 77, 129 S. Ct.
538, 543 (2008)). In Ochoa-Lara, the Kansas Court of Appeals endorsed
this analysis. See 362 P.3d at 610–11.
The United States District Court for the District of Arizona has
read the scope of the prohibition more broadly. It found that 8 U.S.C.
§ 1324a(b)(5) bars investigatory use, not merely evidentiary use, of the
I-9 and attachments in prosecutions other than for the listed federal
crimes. Puente Ariz., 2016 WL 6873294, at *12–13. Hence, the court
found that the state was “field preempted from using the Form I-9 and
accompanying documents for investigations or prosecutions of violations
of the Arizona identity theft and forgery statutes.” Id. at *13. In a
subsequent opinion, the court went on to hold that “documents
presented solely to comply with the federal employment verification
system could [not] be used for state law enforcement purposes” even if
“they were not physically attached to a Form I-9.” Puente Ariz. v. Arpaio,
No. CV–14–01356–PHX–DGC, 2017 WL 1133012, at *8 (D. Ariz. Mar. 27,
2017). At the same time, the court concluded that “Congress did not
intend to preempt state regulation of fraud outside the federal
employment verification process.” Id. at *7. And it concluded that state
authorities could use the same documents as the basis for a prosecution
“if they were also submitted for a purpose independent of the federal
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employment verification system, such as to demonstrate ability to drive
or as part of a typical employment application.” Id. at *8.
I agree with the views of the Minnesota and Kansas courts. “Use”
is an inherently ambiguous term. See Arizona v. Inter Tribal Council of
Ariz., Inc., 570 U.S. ___, ___, 133 S. Ct. 2247, 2254 (2013) (describing the
verb use as “elastic”). In context, 8 U.S.C. § 1324a(b)(5) establishes an
evidentiary bar on the use of I-9 paperwork other than in certain
enumerated federal prosecutions. If Congress had intended the I-9 and
attachments to be totally off-limits to federal and state agencies other
than for the listed federal prosecutions it would have worded the statute
much differently—i.e., as a limitation on disclosure. For example, given
the Arizona federal district court’s interpretation, it would be unlawful for
the FBI to obtain an employee’s I-9 and attachments from an employer in
the course of a terrorism investigation of that employee, because the
offenses under consideration were not listed in section 1324a(b)(5). That
seems absurd to me. 7
In Chamber of Commerce of the United States v. Whiting, the
Supreme Court indicated that § 1324a(b)(5) does not prohibit an
employer from showing that it complied with the I-9 process to defend
against a state criminal prosecution without using “the I-9 form or its
supporting documents themselves.” 563 U.S. 582, 603 n.9, 131 S. Ct.
1968, 1982 n.9 (2011). Similarly, I do not believe § 1324a(b)(5) by its
terms prohibits Iowa from prosecuting Martinez for using a false state
identification card to obtain employment, so long as it does not rely on
7The district court’s latest opinion, in my view, must overcome an additional
interpretive obstacle. Section 1324a(b)(5) refers to “information . . . appended to such
form.” 8 U.S.C. § 1324a(b)(5). If the document has been submitted to the employer but
not attached to the I-9, it has not been “appended to such form.”
57
the I-9 paperwork retained by the employer to do so. And in fact,
Martinez concedes that “[t]here probably is not express preemption” in
this case based on § 1324a(b)(5). And the court today does not rely on
express preemption.
Yet, § 1324a(b)(5) highlights another flaw in the majority’s
preemption ruling. The fact that Congress included a narrow and
specific preemption clause in that section limited to the I-9 undermines
the majority’s view that Congress actually preempted all prosecutions of
unauthorized aliens (but only unauthorized aliens) for using false
identities to obtain employment. Why write a narrow preemption clause
if the entire field was preempted? 8
III. Felony Forgery Is Not Preempted Either.
It is easy for me to conclude that federal immigration law does not
preempt a prosecution of Martinez for general forgery or identity theft.
Felony forgery presents a somewhat closer question, however. Forgery is
a class “D” felony “if the writing is or purports to be . . . [a] document
prescribed by statute, rule, or regulation for entry into or as evidence of
authorized stay or employment in the United States.” See Iowa Code
§ 715A.2(2)(a)(4).
Iowa Code section 715A.2(2)(a)(4) became law in 1996. See 1996
Iowa Acts ch. 1181, § 3. Almost all the changes affected by this
legislative package relate to the hiring of unauthorized aliens. See id.
§ 1–4. Section 1 requires employers who actively recruit non-English
speaking residents of other states more than 500 miles away to provide a
8Additionally,
the majority’s suggestion that Martinez would not have needed to
commit forgery if it hadn’t been for federal law should be rejected. When Martinez went
to work at Packers Sanitation, even if the I-9 requirement never existed, she would have
had to give some identity including a social security number for federal and state tax
purposes.
58
written statement, signed by the employee, that “possession of forged
documentation authorizing the person to stay or be employed in the
United States is a class ‘D’ felony.” Id. § 1 (codified at Iowa Code
§ 91E.3(1)(e) (2013)). Section 2 makes knowing possession of a forged
document a crime. Id. § 2 (codified at Iowa Code § 715A.2(1)(d)). Section
3 adds to the list of documents covered by Class D forgery felony “[a]
document prescribed by statute, rule, or regulation for entry into or as
evidence of authorized stay or employment in the United States.” Id. § 3
(codified at Iowa Code § 715A.2(2)(a)(4)). Section 4 imposes a civil
penalty on an employer who knowingly hires an employee who is not
authorized to be employed in the United States or whose documentation
evidencing authorized stay or employment is known to be false, subject
to the safe harbor in Title 8 U.S.C. § 1324a(b). Id. § 4 (codified at Iowa
Code § 715A.2A). The preamble to the legislation describes it as
AN ACT relating to the crime of forgery, by prohibiting the
knowing possession of forged writings, including documents
prescribed for entry into, stay, or employment in the United
States, and providing criminal penalties and providing civil
penalties for employers hiring individuals with forged
documents regarding the individuals’ entry into, [stay], or
employment in the United States.
Id. The fiscal note for the legislation estimated that the law would result
in 1000 new criminal convictions annually in Iowa, on the theory that
“approximately 1,000 deportations of persons apprehended in Iowa occur
each year and possession of forged documents are applicable to all such
deportations.” S.F. 284, 76th G.A., 2d Sess. fiscal note (Iowa 1996).
This case of course involves Section 3 of the 1996 legislation.
Section 3 is not a facially neutral law. It was written to address
unauthorized immigration, and the law piggybacks verbatim on the
following federal language:
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Whoever knowingly forges, counterfeits, alters, or falsely
makes any . . . document prescribed by statute or regulation
for entry into or as evidence of authorized stay or
employment in the United States, or utters, uses, attempts
to use, possesses, obtains, accepts, or receives any
such . . . document prescribed by statute or regulation for
entry into or as evidence of authorized stay or employment in
the United States, knowing it to be forged, counterfeited,
altered, or falsely made . . . .
18 U.S.C. § 1546(a).
Yet I would conclude that the law does not cross the line set forth
in Arizona. Our legislature did not intrude within an exclusively federal
domain or criminalize conduct that Congress had opted not to
criminalize; instead, it placed a state criminal sanction on top of a federal
criminal sanction in an area that states can regulate. Also, the practical
applications of the Arizona law upheld in Puente Arizona and the Iowa
law are probably similar. Both cover basically the same conduct. Both
would apply to an American citizen’s use of forged documents when
seeking employment—in addition to an unauthorized alien’s use of such
documents.
The majority’s discussion of felony forgery in Part III.D rests on
additional out-of-context case quotations. As I’ve already explained at
length, Arizona does not bar states from criminalizing conduct that
federal immigration law also criminalizes, outside of those areas like
alien registration and unlike alien employment where field preemption
applies. So Arizona does not help the majority. The majority’s
quotations from Valle del Sol Inc. v. Whiting and Georgia Latino are also
taken out of context and do not aid the majority’s position. In both
instances the laws at issue related to alien harboring and transportation,
an area where Congress has fully occupied the field. Valle del Sol Inc. v.
Whiting, 732 F.3d 1006, 1012 (9th Cir. 2013); Ga. Latino, 691 F.3d at
1256. That consideration, and only that consideration, prevented the
60
states from “layer[ing] additional penalties atop federal law.” Ga. Latino,
691 F.3d at 1267; see also Valle Del Sol Inc., 732 F.3d at 1027. Layering
is not generally prohibited, though, and we commonly see parallel state
and federal criminal laws covering the same misconduct. In the typical
case, both sets of laws are equally enforceable.
IV. Conclusion.
I accept the representations of defense counsel that defendant
Martha Martinez was born in Mexico and brought to this country by her
parents when she was eleven years old. I accept the further
representations that she has lived in this country for the last twenty
years, just wants to work here to make ends meet, and would not
consider Mexico her home.
But the majority’s ruling will apply to all unauthorized aliens who
use a false identity to work in this state, whether they are as sympathetic
as Martinez or not. An unauthorized alien who is working under an alias
to avoid paying taxes or cover up a criminal history will also reap the
benefit of today’s decision. At the same time, an American citizen who is
just as sympathetic as Martinez will not benefit from today’s decision.
Our job should not be to pick winners or losers but to apply federal law
as given to us by Congress and state law as given to us by the general
assembly. 9
I want to close by noting an irony in today’s ruling. According to
the majority, federal law preempts criminal fraud committed by an
unauthorized alien only where the purpose of the fraud is to obtain work.
Hence, while Martinez cannot be prosecuted for using her false Iowa
9In my view, we also should not be using our opinions as a platform for
criticizing a county attorney. I will leave any response to that criticism to the county
attorney himself.
61
identification to get herself hired by an Iowa employer, she can be
prosecuted for using that same false identification to cash her employer’s
paycheck at a bank. When a court decision rests on such a diaphanous
distinction, that is another reason to question it.
For all the reasons I have stated, I respectfully dissent.
Waterman and Zager, JJ., join this dissent.