(Photo by Sky Schaudt - KJZZ)

Maricopa County Sheriff's Office

In a brief filed on Friday, lawyers with the U.S. Department of Justice said two Arizona identity theft laws are preempted by federal law when used to prosecute immigrants for working without authorization in the United States.

The federal government’s amicus brief came after a three-judge panel of the U.S. 9th Circuit Court of Appeals asked for the federal government’s opinion before ruling on the contested laws.

The laws in question were passed by the Arizona Legislature in 2007 and 2008 and criminalize using a fake identity to seek work. They have been used by Maricopa County Sheriff Joe Arpaio to arrest unauthorized immigrants in worksite raids. Hundreds of immigrants were arrested under these state laws and were charged with felonies. Many were ultimately deported as a result.

The pro-immigrant rights group Puente sued over the laws in 2014, arguing Maricopa County’s use of the laws intrude on the federal government’s exclusive role regulating which immigrants can work. U.S. District Court Judge David Campbell put the two laws on hold last January as the litigation continues.

Maricopa County Bill Montgomery — a named defendant in the case, along with Arpaio and the state of Arizona — argued Campbell’s ruling prevented his office from protecting victims of identity theft. He appealed the ruling to the 9th Circuit.

Before the three-judge appeals panel ruled on the case, it asked the federal government to weigh in on the issue. In a 36-page amicus brief filed on Friday, Justice Department lawyers said the Arizona identity theft laws are preempted by federal law as they apply to prosecuting unauthorized immigrants for fraudulently filling out forms in order to work, but that other applications of the laws could be legal.

The federal government lawyers, which included the U.S. Attorney of Arizona John Leonardo, indicated the laws have been primarily used to prosecute immigrants, and made clear local authorities could not use information reported on the federal  I-9 form or accompanying forms to prosecute individuals who are not authorized to work in the Unites States, since that is the federal government’s purview.

“State laws that criminalize fraud in the federal employment verification system, or fraud otherwise committed to demonstrate work authorization under federal immigration law, interfere with these federal prerogatives and intrude upon matters that Congress has brought within its 'exclusive governance,'” reads the brief. 

The government noted the laws had on one occasion been used to prosecute someone who had used a fake identity to disguise a drug conviction when seeking work, and that use would not interfere with federal law.

“To the extent the laws also regulate instances of identity theft that do not implicate federal immigration prerogatives, the laws are not preempted in those applications,” the brief continues.

Puente leader Carlos Garcia said he is hoping the 9th Circuit judges keeps the current preliminary injunction in place that is blocking the two Arizona laws completely. He said the federal government’s brief was a good sign for the case.

“It is reaffirming that Sheriff Arpaio and the laws that were used to go after workers in Arizona were done in a way to target the immigrant community and break up our families,” Garcia said.

However, Garcia said he did not want to see the laws allowed to remain on the books to be used in contexts outside of immigration, since he does not trust law enforcement in Maricopa County.

“Unfortunately we know these authorities and Sheriff Arpaio better than anyone and we do not trust them to use them in any other way than they intended to use them from the beginning — which is to target immigrant communities and detain and deport our families,” Garcia said.

Next the 9th Circuit judges will issue their ruling on the matter.