Missouri Forgery Statute Not Preempted By Federal Immigration Law

On behalf of The Marks Law Firm, L.L.C. posted in Criminal Law on Friday, April 5, 2013

This week, in State v. Diaz-Rey, the Eastern District of the Missouri Court of Appeals ruled that Missouri’s forgery statute (Section 570.090) is not preempted by the federal Immigration Reform and Control Act (IRCA), thereby allowing the State to prosecute any undocumented worker who lies in his employment application about his resident status.

The defendant was charged with using false information in an employment application at a Chick-Fil-A restaurant by providing a false social security number. The IRCA makes it a civil and criminal violation for an employer to hire an employee without first verifying his status as a resident alien or natural citizen; it does not impose any penalties on the employee for providing false information to a prospective employer about his status as a resident alien or natural citizen. Consequently, neither the State of Missouri nor the United States government could charge the defendant with a violation of the IRCA (they could subject him to deportation proceedings and violations of other immigration statutes, but that was not at issue in this case).

The State did charge the defendant with forgery, which makes it a crime to use a writing for the purpose of defrauding someone. In this case, the State alleged that the knowing use of a false social security number on an employment application to secure employment that would otherwise be illegal qualifies as fraud (one could make a good argument that this may stretch the language of the forgery statute too far). The defendant argued that IRCA preempted state law and relied in large part on a 2012 U.S. Supreme Court ruling, Arizona v. United States, which some readers may recall involved the invalidation of several Arizona statutes intended to identify and remove undocumented individuals, including making it a crime to walk the streets without having valid documentation of resident alien status. The Supreme Court struck down this provision of the Arizona law, holding that the federal government has exclusively occupied the field of alien registration and therefore preempts state governments from attempting to do the same. The trial court agreed with the defendant and dismissed the information, but the Eastern District reversed.

The Eastern District held that the forgery statute is not like the Arizona statute because it is a law of general applicability not specifically directed at the regulation of immigration but rather the prohibition of fraud through use of a writing. Also, no conflict exists between IRCA and the forgery statute that would make compliance with one a violation of the other. Therefore, under these basic principles, the forgery statute is not preempted by IRCA in this case, and the State was free to proceed with the prosecution of defendant as charged.

Preemption is an important area of the law that gives effect to our republican form of government. Absent preemption, states would be free to enact laws that directly contradict or undo federal law, in clear violation of the Supremacy Clause of the U.S. Constitution. But preemption has limits – namely, to go no further than necessary to effect the purpose of federal law while otherwise giving full respect to the police powers of the states.

This case does raise an interesting question about the role the State should play in trying to prosecute undocumented individuals. If, as the State alleges, the defendant was an undocumented worker, reporting him to the federal authorities would have been sufficient to begin a deportation proceeding. It seems ironic that the State would choose to try and convict the defendant of a Class C felony only to have to provide him housing and meals at taxpayer expense for several years prior to deportation. It does seem that the State may be overreaching, and while preemption may not stop prosecutions like this, other factors may very well do so.

If you have questions about criminal charges related to status as an undocumented worker, contact us – we can help.

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