Criminal Immigration Issues

Published on: November 12, 2019

Can a State Prosecute Identity Theft or Fraud if False Documents are Used to Gain Employment?

The Chicago immigration lawyers of Zneimer & Zneimer follow all immigration cases at the United States Supreme Courts to keep our clients and the public informed. The U.S. Supreme Court recently heard arguments in a case which will have far-reaching implications for undocumented workers. Whether a state can prosecute identity theft if a person gives false documents to gain employment, is one of the questions before the United States Supreme Court in the case of Kansas v. Garcia, Court 17-834. The decision below is State v. Garcia, 401 P.3d 588 (Kan. 2017).

Kansas makes identity theft a crime. Defendants are foreign nationals who had been convicted of identity theft for using stolen identity to gain employment. The Defendants’ attorneys maintain that the information on an I-9 form can only be used for employment verification and for no other purpose, including criminal prosecution because federal law limits the use of the information on the I-9 form to federal crimes. The Defendants’ attorneys state that because the information to gain employment that workers provide on the I-9 form is also on the tax forms that are required at the same time, the State of Kansas cannot prosecute identity theft. Otherwise, in essence, it would be using the information from the I-9 form to prosecute the crime, and the use of this information from the I-9 form is limited by federal law. Even if Kansas bases the prosecution on information provided in the tax forms, as long as the tax form are provided at the same time with the I-9 form, and the information on the tax form is the same that the worker provided on the I-9 form, any prosecution will implicate information from the I-9 form, which is preempted by federal law.

As the name and the social security number were listed on the I-9 and the tax forms, by prosecuting identity theft in this scenario, Kansas is attempting to enforce federal immigration law, which cannot be done because federal law preempts such enforcement. Section 1324a(b)(5) of 8 U.S.C. states that the form “designated or established by the Attorney General under this subsection and any information contained in or appended to such form, may not be used for purposes other than for enforcement of this chapter and [specific federal provisions].” Continue reading →

Published on: November 5, 2018

Marijuana and Immigrants Should not Mix

By Zneimer & Zneimer, P.C.

The Chicago immigration attorneys Zneimer & Zneimer PC remind non-citizens that marijuana remains illegal under federal law. Many states have decriminalized the use of marijuana. Because under some states’ laws use or possession of marijuana is no longer a crime, many immigrants are under the very wrong impression that they can possess and use marijuana without consequences for their immigration status. This is wrong because possession of marijuana continues to be a federal offense and immigration is in the province of federal law.

Immigration officials often question aliens about marijuana use or possession, especially in states that have legalized its use. If an alien admits to an immigration official that he or she has ever used marijuana, the alien can face very serious immigration consequences. The problems may occur even if the alien has never been convicted of a marijuana-related crime, and only admits that he or she used marijuana at home in a state where marijuana was legal. Such admission will cause a number of serious problems. Marijuana use will create immigration issues if the alien applies for permanent residence, citizenship, encounters ICE officials, travels internationally.

The best thing for any non-citizen is to avoid marijuana, including avoid investments in marijuana businesses, work in marijuana dispensaries or shops, or using marijuana. A non-citizen should never carry any marijuana or paraphernalia, any frequent-buyer marijuana card, medical marijuana card, any phone with marijuana-related photos or messages, wear any marijuana-themed clothes, have a car with marijuana-themed bumper-sticker, and never, ever, post any self-incriminating statements about use of marijuana on social media.

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Published on: April 17, 2018

Vague Laws Invite Arbitrary Power

By Zneimer & Zneimer, P.C.

“Vague laws invite arbitrary power.” states Justice Gorsuch in his concurring opinion in Sessions v. Dimaya, finding the residual aggravated felony definition of “crime of violence” in the Immigration and Nationality Act, 101(a)(43)(F), referencing 18 U.S.C. §16, is void for vagueness. The decision only addresses 18 U.S.C. 16(b) portion of the definition, and holds that it is void for vagueness.

The aggravated felony definition includes a list of enumerated crimes, and includes “a crime of violence (as defined in section 16 of title 18, United States Code, but not including a purely political offense) for which the term of imprisonment is at least 1 year.” INA Sec. 101(a)(43)(F). Mr. Dimaya, a legal permanent resident, had two prior convictions for first-degree residential burglary under California law, subjecting him to removal. The government claimed that in committing the residential burglary offenses, he had committed an aggravated felony crime of violence.

Justice Gorsuch began with a foundational question based on Johnson v. United States, 576 U.S.__ (2015), which held that the residual clause of the Armed Career Criminal Act void for vagueness. Citing to the late Justice Scalia’s opinion in Johnson, that the residual was for vagueness because it “invited more unpredictability and arbitrariness” than the Constitution allows. Id., at –––– (slip op., at 6), Justice Gorsuch stated that he was “persuaded” that the “void for vagueness doctrine” serves as a “faithful expression of ancient due process and separation of powers principles the framers recognized as vital to ordered liberty under our Constitution.” Sessions v. Dimaya, No. 15-1498, 2018 WL 1800371 (U.S. Apr. 17, 2018).

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