States can impose their own stiff penalties on illegal immigrants — or others — who steal someone’s identity in order to get a job, a federal appeals court ruled Monday, upholding Arizona’s strict law and dealing a setback to immigrant rights advocates.
The decision is yet another victory for Maricopa County Sheriff Joe Arpaio and, more broadly, for Arizona, which has been a pioneer in trying to find ways to punish illegal immigrants, stepping into a void left by the Bush and Obama administrations.
The U.S. Court of Appeals for the Ninth Circuit said that while there are still some questions about how police and prosecutors use the identity theft laws, on their face they do not violate the Constitution, nor do they trample on the federal government’s ability to set national immigration policies.
As long as the laws apply to anyone, including U.S. citizens who steal someone’s identity, they are allowed — even if the legislature intended them chiefly as a way to strike at one of the symptoms of illegal immigration, the judges said.
“In this case, Arizona exercised its police powers to pass criminal laws that apply equally to unauthorized aliens, authorized aliens, and U.S. citizens,” Circuit Judge Richard C. Tallman wrote in the unanimous opinion. “Just because some applications of those laws implicate federal immigration priorities does not mean that the statute as a whole should be struck down.”
The identity theft law was one of a series of changes Arizona passed over the last decade to try to put pressure on illegal immigrants.
The Supreme Court has already upheld a state law requiring all businesses to use the federal E-Verify program to check their employees’ work authorization, while the justices split on another law, SB 1070, striking down Arizona’s stiffer penalties against illegal immigrants but upholding the part that orders police to check the legal status of those they encounter in their regular duties, and who they suspect are in the country illegally.
On Monday the American Civil Liberties Union Foundation of Arizona challenged Tucson’s enforcement of SB 1070, arguing the police department was detaining people for hours while the Border Patrol was called.
“The majority of the stops we reviewed lasted between one to two hours. Most of these incidents were routine traffic stops — many involving minor infractions, such as suspended license or lack of insurance — which would ordinarily result in field release, but in these cases led to prolonged detention, sometimes including transport to the custody of Border Patrol,” James Lyall, an ACLU lawyer, wrote in a letter to new Tucson Police Chief Chris Magnus.
Arizona Attorney General Mark Brnovich’s office didn’t respond to requests for comment on either SB 1070 or on the appeals court ruling, but his state has been at the forefront of challenging the federal government’s more relaxed enforcement of immigration laws.
As the laws have stiffened, the estimated number of illegal immigrants in Arizona has dropped dramatically since it peaked in 2007.
The changes to the state’s identity theft laws came in 2007 and 2008, and were intended to punish anyone using a false identity, such as a stolen or fake Social Security number, to try to get a job in Arizona.
That state at the time had the highest rate of identity fraud in the country.
Immigrant rights groups sued, arguing the state was trying to interfere with federal powers to set immigration law. The groups also challenged Sheriff Arpaio in particular for using the law to pursue illegal immigrants.
A federal district court initially agreed, striking down the law. But the appeals court on Monday reversed that ruling and sent the case back to the district court, saying it needs to see how the law is being applied, but at least on its face it doesn’t conflict with the federal government.
“Although most of these enforcement actions have been brought against unauthorized aliens, some authorized aliens and U.S. citizens have also been prosecuted,” the judges said. “And while many of the people prosecuted under the identity theft laws used a false identity to prove that they are authorized to work in the United States, other defendants used false documents for non-immigration related reasons.”
Puente Arizona, the chief group that sued the state, Maricopa County and Sheriff Arpaio, did not immediately respond to a request for comment, nor did the sheriff’s office.
In 2014, however, Sheriff Arpaio conceded to the groups, disbanding his special identity theft unit and halting enforcement of the new law in 2014.
At the time, the sheriff said President Obama’s efforts to grant work permits to as many as 5 million illegal immigrants meant those individuals didn’t need to resort to stealing someone else’s identity.
Most of Mr. Obama’s work permit program has been halted by federal courts. That case is now pending before the Supreme Court, which heard oral argument last month, and is expected to rule by the end of June.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
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