Private immigration screening in the workplace

Stanford Law Review

Volumn 61, Issue 5, 2009, Pages 1103-1146

  Lee, Stephen ^a  

^a STANFORD LAW SCHOOL   (United States)

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EID: 66849093896     PISSN: 00389765     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (190)

1. 1.JEFFREY S. PASSEL, PEW HISPANIC CENTER, THE SIZE AND CHARACTERISTICS OF THE UNAUTHORIZED MIGRANT POPULATION IN THE U.S.: ESTIMATES BASED ON THE MARCH 2005 CURRENT POPULATION SURVEY 1, available at http://pewhispanic. org/files/reports/61.pdf.
2. Prior to 2003, the Immigration and Naturalization Service was the agency that carried out sanctions and workplace enforcement, and so my use of "INS" refers to that era of immigration enforcement. In 2003, the functions of the INS were transferred to the Department of Homeland Security (DHS). Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135.
3. U.S. IMMIGRATION&CUSTOMS ENFORCEMENT, ICE FISCAL YEAR 2007 ANNUAL REPORT: PROTECTING NATIONAL SECURITY AND UPHOLDING PUBLIC SAFETY, at iv (2007), available at http://www.ice.gov/doclib/about/ice07ar-final.pdf. Immigration and Customs Enforcement (ICE) is housed within the DHS.
4. Employers have not, however, been undercriticized. Indeed, the Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, 100 Stat. 3359, has generated an impressive body of work addressing the different ways in which the statute has proven to be ineffective. See, e.g., Linda S. Bosniak, Exclusion and Membership: The Dual Identity of the Undocumented Worker Under United States Law, 1988 WIS. L. REV. 955;
5. Martha F. Davis, Lucas Guttentag&Allan H. Wernick, Report of the Committee on Immigration and Nationality Law of the Association of the Bar of the City of New York: An Analysis of Discrimination Resulting from Employer Sanctions and a Call for Repeal, 26 SAN DIEGO L. REV. 711 (1989);
6. Cecelia Espenoza, The Illusory Provisions of Sanctions: The Immigration Reform and Control Act of 1986, 8 GEO. IMMIGR. L.J. 343 (1994);
7. Jeffrey Manns, Private Monitoring of Gatekeepers: The Case of Immigration Enforcement, 2006 U. ILL. L. REV. 887;
8. Lori A. Nessel, Undocumented Immigrants in the Workplace: The Fallacy of Labor Protection and the Need for Reform, 36 HARV. C.R.-C.L. L. REV. 345 (2001);
9. Huyen Pham, The Private Enforcement of Immigration Laws, 96 GEO. L.J. 777 (2008);
10. Maurice A. Roberts&Stephen Yale-Loehr, Employers as Junior Immigration Inspectors: The Impact of the 1986 Immigration Reform and Control Act, 21 INT'L LAW. 1013 (1987); Juliet Stumpf&Bruce Friedman, Advancing Civil Rights Through Immigration Law: One Step Forward, Two Steps Back?, 6 N.Y.U. J. LEGIS.&PUB. POL'Y 131 (2002);
11. Michael J. Wishnie, Prohibiting the Employment of Unauthorized Immigrants: The Experiment Fails, 2007 U. CHI. LEGAL F. 193.
12. See Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, 100 Stat.3359.
13. ICE and United States Citizenship and Immigration Services (USCIS) are the divisions within the DHS responsible for handling the majority of immigration-related decisions. According to the DHS, in 2007 ICE employed more than 16,500 people and USCIS employed more than 15,000 people. See U.S. CITIZENSHIP&IMMIGRATION SERVS., USCIS ANNUAL REPORT FISCAL YEAR 2007, at 3 (2007), available at http://www.uscis.gov/files/nativedocuments/USCIS-annual- report-part1.pdf; U.S. IMMIGRATIONS&CUSTOMS ENFORCEMENT, supra note 3, at 1. The total number of public officials is at most 31,500 because USCIS employs both "federal and contract employees," demonstrating the extent to which public entities have come to rely on private actors. U.S. CITIZENSHIP& IMMIGRATION SERVS., supra, at 3.
14. According to a recent report, in 2004 the six most immigrant-dependent industries, in decreasing order of dependence, were: (1) farming, fishing, and forestry; (2) construction; (3) building and grounds maintenance; (4) production (manufacturing); (5) food preparation and serving; and (6) transportation. See RANDY CAPPS, KARINA FORTUNY& MICHAEL FIX, TRENDS IN THE LOW-WAGE IMMIGRANT LABOR FORCE, 2000-2005, at 7 tbl.4 (2007), available at http://www.urban.org/UploadedPDF/411426-Low-Wage-Immigrant- Labor.pdf. According to the U.S. Census, in 2004 there were 760,400 and 339,100 "Construction" and "Manufacturing" establishments, respectively, which comes to just under 1.1 million total establishments.
15. See U.S. CENSUS BUREAU, THE 2008 STATISTICAL ABSTRACT, TABLE 736: ESTABLISHMENTS, EMPLOYEES, AND PAYROLL BY EMPLOYMENT-SIZE CLASS AND INDUSTRY: 2000 TO 2004 (2008), available at http://www.census.gov/compendia/ statab/2008/tables/08s0736. pdf.
16. See, e.g., Manns, supra note 4, at 931 ("The fundamental problem is that both employers of low-wage workers and undocumented aliens share a strong economic interest in engaging in formal compliance yet substantive subversion of the verification process."); Alexandra Natapoff, Underenforcement, 75 FORDHAM L. REV. 1715, 1735-36 (2006).
17. See infra Part II.A.
18. Wishnie, supra note 4, at 216.
19. While others have made passing note of this dynamic, I seek to fully elaborate the role transition undertaken by employers. See Nessel, supra note 4, at 360 (noting that while "IRCA was intended to punish employers" many INS initiatives have targeted only workers).
20. Huyen Pham has made an important first contribution by analyzing the costs and benefits of what she describes as the private enforcement of immigration laws. See Pham, supra note 4, at 783. But Pham expressly leaves open some of the theoretical questions this Article endeavors to answer:This Article focuses on the efficacy of the shifting, but the phenomenon of private enforcement also raises similar legal and political questions: are governments also shifting political accountability for immigration law enforcement? If a private party violates civil rights laws, who should be held responsible for damages-the private party, the government requiring the private enforcement, both or none? Finally, should private parties be compensated in some way for their new enforcement responsibilities? Id. at 783-84.
21. See Raquel Aldana, Of Katz and "Aliens": Privacy Expectations and the Immigration Raids, 41 U.C. DAVIS L. REV. 1081, 1098-99 (2008);
22. see also Press Release, Dep't of Homeland Sec., DHS Highlights Best Practices for Maintaining Legal Workforces (July 26, 2006), available at http://www.dhs.gov/xnews/releases/press-release-0966.shtm (explaining that DHS policy encourages employers to join the "Basic Pilot Employment verification" program, which provides employers access to an internet-based federal database to help determine the work eligibility of their employees).
23. See Michael J. Wishnie, Introduction: The Border Crossed Us: Current Issues in Immigrant Labor, 28 N.Y.U. REV. L.&SOC. CHANGE 389, 389 (2004).
24. See Aldana, supra note 13, at 1100.
25. Adam B. Cox&Eric A. Posner, The Second order Structure of Immigration Law, 59 STAN. L. REV. 809 (2007).
26. Scholars have made only passing reference to the idea that employers make immigration-related screening decisions regarding their workforce. See David A. Martin, Eight Myths About Immigration Enforcement, 10 N.Y.U. J. LEGIS.&PUB. POL'Y 525, 546 (2007) (characterizing IRCA and its verification requirements as requiring employers to engage in "immigration screening"); Stumpf&Friedman, supra note 4, at 137 (noting that IRCA "effectively makes employers parties to enforcement of the immigration laws affecting the labor market. Employers themselves become the primary method of screening the labor pool for employees that the State has not authorized to work" (citation omitted)); Eleanor Marie Lawrence Brown, Outsourcing Immigration Compliance 15 (Harvard Law Sch., Harvard Pub. Law Working Paper No. 08-12, 2008) (noting that employer sanctions statutes encourage employers to screen aliens for work permits and penalize employers when they fail to perform this function).
27. See CAL. LAB. CODE § 2805 (1983) (repealed 1988). Eleven other states and one city followed suit, including Connecticut, Delaware, Florida, Kansas, Maine, Massachusetts, Montana, New Hampshire, New Jersey, Vermont, Virginia, and Las Vegas. See KITTY CALAVITA, CALIFORNIA'S "EMPLOYER SANCTIONS": THE CASE OF THE DISAPPEARING LAW 4 n.3 (1982). I focus on California because the decisional law addressing this particular pre- IRCA employer sanction law is well developed, and thus provides a useful window into the motivations, concerns, and anxieties of that period
28. Cal. Lab. Code § 2805(a)-(b) (1983) (repealed 1988).
29. Id. § 2805(c).
30. In the months leading up to section 2805's passage, the California Courts of Appeal rendered several decisions denying relief to citizen and otherwise lawful migrant farmworkers. Though courts consistently ruled against plaintiffs on the theory that regulating immigrants was a responsibility best left to the federal government, they often expressed dismay over what they understood to be a gaping hole in our nation's immigration laws. See, e.g., Larez v. Oberti, 100 Cal. Rptr. 57 (Ct. App. 1972);
31. Cobos v. Mello-Dy Ranch, 98 Cal. Rptr. 131 (Ct. App. 1971). Although the decision in Larez was rendered after section 2805 was passed, the challenged activities occurred before its passage. See Larez, 100 Cal. Rptr. at 63&n.5.
32. See De Canas v. Bica, 424 U.S. 351, 353-54 (1976).
33. Id. at 357. Justice Brennan, writing for a unanimous Court, explained that although the immigration power was federal in nature, states retained some authority to pass at least some measures affecting immigrants. California's decision to regulate immigrants, the Court explained, did not automatically become a "constitutionally proscribed regulation of immigration" at least where such regulation had "some purely speculative and indirect impact on immigration." Id. at 355. Thus, it was perfectly fine that California prohibited the hiring of noncitizens who "have no federal right to employment within the country" in order to "strengthen its economy."
34. Id.
35. The last time state and local governments engaged in a coordinated campaign to structure private relationships for immigration purposes was during the early part of the twentieth century when several western states passed "alien land laws" prohibiting "aliens ineligible to citizenship" from obtaining any interest in land ownership. See oyama v. California, 332 U.S. 633 (1948);
36. Morrison v. California, 291 U.S. 82 (1934); Cockrill v. California, 268 U.S. 258 (1925);
37. Frick v. Webb, 263 U.S. 326 (1923); Webb v. O'Brien, 263 U.S. 313 (1923);
38. Porterfield v. Webb, 263 U.S. 225 (1923);
39. Terrace v. Thompson, 263 U.S. 197 (1923).
40. iRCA also expressly overruled employer sanctions laws passed by state and local entities, including California's. See 8 U.S.C. § 1324a(h)(2) (2006) ("The provisions of [IRCA] preempt any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens."). For excellent summaries of the tumultuous events leading up to the passage of iRCA and the difficulties of placating the diverse set of competing interests, see ARISTIDE R. ZOLBERG, A NATION BY DESIGN: IMMIGRATION POLICY IN THE FASHIONING OF AMERICA 354-75 (2006) and Wishnie, supra note 4.
41. See 8 U.S.C. § 1324a(b)(1)(C)(i)-(ii) (2006);
42. C.F.R. § 274a.2(a)-(b) (2009).
43. See Wishnie, supra note 4, at 195-96.
44. Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 148 (2002) (emphasis added).
45. Hiroshi Motomura, Whose Alien Nation?: Two Models of Constitutional Immigration Law, 94 MICH. L. REV. 1927, 1944 (1996).
46. BENEDICT ANDERSON, IMAGINED COMMUNITIES: REFLECTIONS ON THE ORIGIN AND SPREAD OF NATIONALISM (rev. ed. 1991).
47. See Janet A. Gilboy, Deciding Who Gets In: Decisionmaking by Immigration Inspectors, 25 LAW&SOC'Y REV. 571, 590-91 (1991) [hereinafter Gilboy, Deciding Who Gets In]. Under screening procedures, the primary inspector either admits the entrant, or if her suspicions are aroused, directs the entrant to secondary inspection, where the secondary inspector can make a more thorough and comprehensive inquiry into the entrant's identity and motives. For a more detailed description, see id. at 574-77. Gilboy has written extensively about the regulatory challenges that flow from immigration inspection in the airport context. See Janet A. Gilboy, Compelled Third-Party Participation in the Regulatory Process: Legal Duties, Culture, and Noncompliance, 20 LAW&POL'Y 135 (1998) [hereinafter Gilboy, Compelled Third-Party Participation];
48. Janet A. Gilboy, Implications of "Third-Party" Involvement in Enforcement: The INS, Illegal Travelers, and International Airlines, 31 LAW&SOC'Y REV. 505 (1997) [hereinafter Gilboy, Implications of "Third- Party" Involvement].
49. To help deter these sorts of unauthorized entries, immigration officials enlist the help of airlines, which, much like employers, are required to examine and verify the travel documents of their passengers. See 8 U.S.C. § 1321(a) (2006). Airline sanction laws bear the same structural features of those creating employer sanctions-Congress has imposed a set of obligations onto a private entity, which is charged with the duty of carrying out a service traditionally carried out by a public entity. Airlines are fined for failing to determine that a passenger possessed improper documentation for entry into the United States, and in addition, face the responsibility of transporting the undesirable entrant out of the United States.
50. See Gilboy, Implications of "Third Party" Involvement, supra note 31, at 509. The offending airline also incurs the costs associated with detention and custody, to the extent such costs arise. See id.
51. Gilboy notes that primary immigration inspectors exhibit a tendency to screen in entrants when they can furnish an employment letter from "respectable companies." She explains:In these cases, there is a tendency for inspectors to rely on the company's own screening of job candidates. This is essential "surrogate screening," in which an earlier institution's decisionmaking is substituted for a fresh screening. Thus, decisions by other institutions, not within the legal system, come to affect legal decisionmaking. Gilboy, Deciding Who Gets In, supra note 31, at 592. In the airport screening context, primary inspectors are well aware that it is their judgment that makes them valuable, and what subjects them to promotion or punishment. They are incentivized to overadmit with low-risk cases because "their judgment is likely to be called into question if they refer a series of perceived 'nothing' cases to secondary inspectors." Id. at 584.
52. See id. at 590-91. In this "nanny" scenario, the inspector would direct the entrant to secondary inspection, where the secondary inspector could make a more thorough and comprehensive inquiry into the entrant's identity and motives.
53. For a more detailed description of the screening procedures, see id. at 574-77.
54. See Juliet Stumpf, The Crimmigration Crisis: Immigrants, Crime, and Sovereign Power, 56 AM. U. L. REV. 367, 385 (2006);
55. see also Michael J. Wishnie, State and Local Police Enforcement of Immigration Laws, 6 U. PA. J. CONST. L. 1084 (2004).
56. Wishnie, supra note 35, at 1095-96.
57. See Hiroshi Motomura, Immigration Outside the Law, 108 COLUM. L. REV. 2037, 2060-65 (2008).
58. Another approximately 650,000 persons immigrate because a family member has sponsored them. See MIGRATION POLICY INST., FACT SHEET NO. 16, ANNUAL IMMIGRATION TO THE UNITED STATES: THE REAL NUMBERS 1 (2007), [hereinafter ANNUAL IMMIGRATION REPORT], available at http://www. migrationpolicy.org/pubs/FS16-USImmigration- 051807.pdf. This is unsurprising given that one of the central goals of our immigration laws is to unite families.
59. See Jennifer M. Chacon, Loving Across Borders: Immigration Law and the Limits of Loving, 2007 WIS. L. REV. 345, 358 ("Immigration laws are not blind to the rights and needs of families; indeed, family reunification is a central part of United States immigration law.");
60. see also Hiroshi Motomura, We Asked for Workers, but Families Came: Time, Law, and the Family in Immigration and Citizenship, 14 VA. J. SOC. POL'Y&L. 103 (2006).
61. Those seeking to sponsor and screen-in family members must similarly internalize the cost of dependency, caretaking, and integration responsibilities. Family law scholars have developed this idea in the context of regulating families. See Martha L.A. Fineman, Masking Dependency: The Political Role of Family Rhetoric, 81 VA. L. REV. 2181, 2187 (1995) (explaining that caretaking responsibilities have been privatized, so that "[t]he ideology of the private family mandates that the unit nurture its members and provide for them economically"); Melissa Murray, The Networked Family: Reframing the Legal Understanding of Caregiving and Caregivers, 94 VA. L. REV. 385, 394-95 (2008) ("[P]erhaps the most important function that the family serves is the privatization of care for dependent members, usually children. The family-and parents, particularly-takes on this task, so that it is not primarily the public responsibility of the state." (internal citations omitted)).
62. Importantly, some immigrants who are already within the United States can in certain instances adjust their status to that of a legal permanent resident. See, e.g., 8 U.S.C.§ 1255(i) (2006).
63. See Stumpf, supra note 35, at 385;
64. Wishnie, supra note 35.
65. See DAVID A. MARTIN, TWILIGHT STATUSES: A CLOSER EXAMINATION OF THE UNAUTHORIZED POPULATION (Migration Policy Inst. ed. 2005), available at http://www.migrationpolicy.org/pubs/MPI-PB-6.05.pdf.
66. INA § 240A(b)(1)(A), 8 U.S.C. § 1229b(b)(1)(A) (2006).
67. INA § 208(b)(1)(B)(i), 8 U.S.C. § 1158(b)(1)(B)(i) (2006).
68. See Motomura, supra note 37, at 2049 (identifying the Nicaraguan and Central American Relief Act and Haitian Refugee Immigration Fairness Act as examples of where "previously unlawful migrants were brought into the lawful fold").
69. I thank David Sklansky for sharing this observation with me. See Plyler v. Doe, 457 U.S. 202, 218 (1982) ("Sheer incapability or lax enforcement of the laws barring entry into this country, coupled with the failure to establish an effective bar to the employment of undocumented aliens, has resulted in the creation of a substantial 'shadow population' of illegal migrants-numbering in the millions-within our borders.").
70. Cox&Posner, supra note 16, at 809;
71. see also Brown, supra note 17.
72. Cox&Posner, supra note 16, at 847.
73. For a thoughtful analysis of the ways in which discretionary deportation produces significant procedural consequences for those seeking relief from deportation, see Gerald L. Neuman, Discretionary Deportation, 20 GEO. IMMIGR. L.J. 611 (2006). Neuman notes that this discretion resembles traditional prosecutorial forms of discretion, including the authority to decide to bring or not bring removal actions against noncitizens. But it also includes forms of discretion that are unique to immigration law, such as relief from deportation. See Nessel, supra note 4, at 381 ("With respect to undocumented persons, the INS already relies upon prosecutorial discretion in deciding whom actively to deport based upon an evaluation of the size of the undocumented population, the economic and humanitarian reasons underlying their entrance into this country, the economic necessity for low-wage workers in the United States, and the limited funding available to the INS for use in deportation." (internal citation omitted)).
74. Cox&Posner, supra note 16, at 846-47.
75. I should be clear that I harbor some reservations about Congress's attempts to criminalize an increasing number of activities, but I do agree with Cox and Posner that, at least as a descriptive matter, criminal convictions have served an ex post screening function.
76. Wishnie, supra note 14, at 393 n.25.
77. See Jennifer Gordon&R.A. Lenhardt, Rethinking Working and Citizenship, 55 UCLA L. REV. 1161, 1214 n.254 (2008) (citing GOV'T ACCOUNTABILITY OFFICE, IMMIGRATION ENFORCEMENT: WEAKNESSES HINDER EMPLOYMENT VERIFICATION AND WORKSITE ENFORCEMENT EFFORTS 35 (2005)).
78. Philip Martin&Mark Miller, Employer Sanctions: French, German and U.S. Experiences 47 (Int'l Migration Papers, No. 36, 2000). This is an exceptional case where many of the immigrant workers were granted relief by the immigration judge. See INS Grants Deportation Relief to Minneapolis Immigrant Workers Fired for Union Activities, IMMIGRANTS' RIGHTS UPDATE, June 6, 2000, http://www.nilc.org/ immsemplymnt/wkplce- enfrcmnt/wkplcenfrc012.htm.
79. Wishnie, supra note 14, at 389.
80. See Nina Bernstein, Groceries on the Computer, and Immigrants in the Cold, N.Y. TIMES, Dec. 22, 2007, at B1;
81. Nina Bernstein, Warehouse Workers Quit In Immigration Inquiry, N.Y. TIMES, Dec. 13, 2007, at B6.
82. See Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 148-49 (2002).
83. See Christine N. Cimini, Ask, Don't Tell: Ethical Issues Surrounding Undocumented Workers' Status in Employment Litigation, 61 STAN. L. REV. 355, 357-58 n.8 (2008) (summarizing the various labor and employment claims available to unauthorized workers).
84. 364 F.3d 1057, 1064 (9th Cir. 2004).
85. Id. at 1065; see also Does I thru [sic] XXIII v. Advanced Textile Corp., 214 F.3d 1058 (9th Cir. 2000). in Advanced Textile Corp., the Ninth Circuit addressed whether plaintiffs could pursue labor violations anonymously, where plaintiffs were foreign workers who faced the possibility of deportation. Siding with the plaintiffs, the Ninth Circuit reasoned that the threat of deportation rendered "extraordinary" the nature of retaliation in this particular case. Id. at 1070-71.
86. For example, in Singh v. Jutla, an employer knowingly recruited and hired an unauthorized worker and contacted the INS only when the immigrant attempted to recover unpaid wages and overtime pay. 214 F. Supp. 2d 1056, 1057 (N.D. Cal. 2002);
87. see also Fuentes v. INS, 765 F.2d 886, 887 (9th Cir. 1985), vacated by Fuentes v. INS, 884 F.2d 699 (9th Cir. 1988); Contreras v. Corinthian Vigor Ins. Brokerage, Inc., 25 F. Supp. 2d 1053, 1055 (N.D. Cal. 1998) (holding that the plaintiff, a secretary without work authorization, could pursue FLSA where the employer reported the plaintiff to the INS in retaliation for her filing of a claim seeking unpaid wages and overtime pay). But cf. Montero v. INS, 124 F.3d 381 (2d Cir. 1997).
88. 124 F.3d 381 (2d Cir. 1997).
89. Id. at 382-84.
90. Julia Preston, After Iowa Raid, Immigrants Fuel Labor Inquiries, N.Y. TIMES, July 27, 2008, at A1. Jennifer Gordon's work also speaks to this phenomenon. In her book, Suburban Sweatshops, which draws heavily from her experience organizing low-wage immigrant workers, Gordon details the "minimalist approach" that employers take to complying with IRCA'S verification duties. She observes: If a worker presents documents that appear reasonably legitimate when she is hired, the employer records them on the 1-9 form designed for the purpose, drops the form in a file, and thinks no more about it-until the day comes when such workers make some demand the employer wants to resist. It may be a simple request for a bathroom break or for overtime wages. More often, it comes as the first stirrings of a union organizing campaign. Suddenly, the employer remembers employer sanctions. If he had never filled out 1-9 forms, he gets the urge to comply with the law, forcing all the workers to provide legal papers on the spot. If he has 1-9 files, he begins to pay new attention to them, calling the Social Security Administration to check on the validity of numbers, demanding to see new versions of documents that have expired. JENNIFER GORDON, SUBURBAN SWEATSHOPS: THE FIGHT FOR IMMIGRANT RIGHTS 49-50 (2005). Gordon further notes that "[e]mployer sanctions has [sic] become the perfect cloak under which to carry out an effective campaign of intimidation, sending the clear message that immigrant workers who organize are no longer the kind of immigrant workers who get jobs." Id. at 50.
91. KATE BRONFENBRENNER, UNEASY TERRAIN: THE IMPACT OF CAPITAL MOBILITY ON WORKERS, WAGES, AND UNION ORGANIZING 46-47 (2000), available at http://digitalcommons.ilr.cornell.edu/cgi/ viewcontent.cgi?article=1002&context=reports.
92. Id. at 44.
93. CHIRAG MEHTA ET AL., CTR. FOR URBAN ECON. DEV., UNIV. OF ILL. AT CHI., CHICAGO'S UNDOCUMENTED IMMIGRANTS: AN ANALYSIS OF WAGES, WORKING CONDITIONS, AND ECONOMIC CONTRIBUTIONS 27 (2002), available at http://www.uic.edu/cuppa/uicued/ Publications/RECENT/undoc-full.pdf.
94. Specifically, the report found that of the reasons identified, "32% relate to the fear that employers would punish workers for reporting the conditions" and "30% relate specifically to the fear that workers might be deported if they report the conditions." Id. at 28.
95. Id. at 29. The survey found that the disparities continued into other wage and hour allegations as well: 21% of undocumented workers alleged forced overtime compared to 16% of documented workers, and 18% of undocumented workers alleged working without breaks compared to 7% of documented workers.
96. Id.
97. Wishnie, supra note 14, at 391-92.
98. Id. at 392.
99. CYNTHIA ESTLUND, WORKING TOGETHER: HOW WORKPLACE BONDS STRENGTHEN A DIVERSE DEMOCRACY 117 (2003).
100. Cristina M. Rodriguez, Guest Workers and Integration: Toward a Theory of What Immigrants and Americans Owe One Another, 2007 U. CHI. LEGAL F. 219, 237;
101. see also JANELLE S. WONG, DEMOCRACY'S PROMISE: IMMIGRANTS&AMERICAN CIVIC INSTITUTIONS 173 (2006) ("Community organizations, such as labor organizations, workers' centers, advocacy and social service organizations, ethnic voluntary associations, and religious institutions, may be more likely than parties to invest in long-term mobilization of immigrants.").
102. Gordon and Lenhardt note that according to a study conducted by sociologist Helen Marrow on relationships between black and immigrant workers in a large chicken- processing plant, "tensions in the poultry plant paled in comparison to those evident in the community at large.... Indeed, participants in Marrow's study consistently 'report[ed] positive relations among workers of different racial and ethnic backgrounds as well as a lack of racial discrimination.'" JENNIFER GORDON&R.A. LENHARDT, CONFLICT AND SOLIDARITY BETWEEN AFRICAN AMERICAN AND LATINO IMMIGRANT WORKERS 25 (2007) (alterations in original). For an excellent analysis of the difficulties of finding legal recourse for demonstrations of intergroup racial solidarity in the workplace, see Noah D. Zatz, Beyond the Zero-Sum Game: Toward Title VII Protection for Intergroup Solidarity, 77 IND. L.J. 63 (2002).
103. See Lani Guinier, From Racial Liberalism to Racial Literacy: Brown v. Board of Education and the Interest-Divergence Dilemma, 91 J. AM. HIST. 92 (2004).
104. See Devon W. Carbado, Racial Naturalization, 57 AM. Q. 633 (2005).
105. Gordon and Lenhardt explain that the tension between black citizens and Latino immigrants in the workplace derives in part from the different paths each group has taken to the workplace, which has produced different perspectives on the meaning of work. While both groups recognize that they are victimized by the same degrading and humiliating acts in the workplace, differing expectations impede the development of a true sense of solidarity. While Latino immigrant workers might be able to tolerate subpar conditions in exchange for the opportunity to earn wages that exceed many times over what they could make in their sending country, black citizen workers can barely tolerate still more proof that they have not yet achieved the fruits of full citizenship. See Gordon&Lenhardt, supra note 53, at 1202-19.
106. Some have hinted at this culture of collaboration. For example, nearly twenty years ago, Kitty Calavita noted that early implementation efforts swam in a "spirit of cooperation... devoted to establishing rapport with employers and encouraging voluntary compliance with employer sanctions." Kitty Calavita, Employer Sanctions Violations: Toward a Dialectical Model of White-Collar Crime, 24 LAW&SOC'Y REV. 1041, 1061 (1990). From a similar vantage point, Linda Bosniak observed that "[IRCA] creates a structured antagonism of interests between employers and the INS. Under the previous regime,... employers often cooperated with the INS during the agency's workplace surveys because cooperation frequently meant less disruption of production and because they did not face any penalties for hiring undocumented workers." Linda S. Bosniak, supra note 4, at 1035. Bosniak could not have predicted the degree to which government-employer cooperation would continue even in a post-IRCA world, though she did with great acumen identify those dynamics that would enable such cooperation.
107. See id. at 1035-36 (noting that the relatively toothless wording of IRCA introduced "elements of direct conflict between employers and undocumented workers" and opining that it "will always be in the interest of an employer, when faced with the charge of knowingly hiring an undocumented alien, to deny awareness of the worker's unauthorized status").
108. Calavita identifies these industries as including the garment, construction, electronics, hotel, restaurant, food processing, and building and landscape maintenance industries. She excluded the agriculture industry because it was not subject to sanctions during the period of study, which was 1987-88. Calavita, supra note 78, at 1046-47.
109. Id. at 1050-51.
110. According to Calavita's study, well over half of the employers believed that other employers in similar industries hired unauthorized immigrants, while over thirty percent were "convinced" that the INS did not have the ability to enforce sanctions. Id. at 1053.
111. Jason Juffras, IRCA and the Enforcement Mission of the Immigration and Naturalization Service, in THE PAPER CURTAIN: EMPLOYER SANCTIONS' IMPLEMENTATION, IMPACT, AND REFORM 33, 40 (Michael Fix ed., 1991).
112. Id. at 41. As one scholar noted:In the long run, the new recruitment policy for the Investigations Division may have a stronger impact on the agency when this large cohort of special agents begins to assume leadership posts. In the past, management positions in the INS have been dominated by former Border Patrol officers committed to an enforcement policy of raids and apprehensions. The recruitment of agents from different backgrounds, trained to regulate businesses instead of apprehend immigrants may erode that pattern and broaden the perspectives of agency managers.Id. at 40-41.
113. Id. at 42 (internal quotations omitted).
114. As early as 1981, certain enforcement officials who supported employer sanctions attempted to assuage employer concerns by emphasizing the conciliatory nature of the new law. For example, Doris Meissner, then the acting Commissioner of the INS, stated that "implementation of the law is not designed to be and will not be antiemployer." Calavita, supra note 78, at 1058 (internal quotations and alterations omitted).
115. MARTIN&MILLER, supra note 54, at 2 ("Since removing criminal aliens wins the INS praise, while sanctions enforcement brings attacks from employers, worker groups, and politicians, removing criminal aliens has become the INS's highest priority."). While the INS investigated 15,000 employers in 1989, by 1995, the number had dropped to just 6000. On a related note, in 2004, the Immigration Control and Enforcement Bureau issued a total of three Notices of Intent to Fine, down from 417 just five years earlier. Gordon&Lenhardt, supra note 53, at 1214 n.254 (citing GOV'T ACCOUNTABILITY OFFICE, IMMIGRATION ENFORCEMENT: WEAKNESSES HINDER EMPLOYMENT VERIFICATION AND WORKSITE ENFORCEMENT EFFORTS 35 (2005)).
116. See Elizabeth Rolph&Abby Robyn, Los Angeles: A Window on Employer Sanctions, in THE PAPER CURTAIN: EMPLOYER SANCTIONS' IMPLEMENTATION, IMPACT, AND REFORM, supra note 82, at 97, 116.
117. The three-days-notice requirement was a part of the INS's larger plan to "signal[] a cooperative attitude toward employers in designing investigative procedures." Juffras, supra note 82, at 42.
118. See MARTIN&MILLER, supra note 54, at 32 (noting that DOL inspectors do not provide employers with notice when making inspections). An employer announcing a pending audit is usually enough to compel unauthorized workers to quit or stop coming to work. See Bernstein, Groceries, supra note 56, at B1; Bernstein, Warehouse Workers, supra note 56, at B6.
119. Motomura, supra note 37, at 2052. In 2003, the DHS made only 445 "administrative arrests," but by 2007, that figure had risen to over 4000. U.S. Immigration&Customs Enforcement, Worksite Enforcement (Nov. 25, 2008), http://www.ice.gov/pi/ news/factsheets/worksite.htm.
120. It remains to be seen whether the Obama administration will continue this trend.
121. In 2006, the DHS raided several meatpacking plants belonging to Swift&Company, detaining hundreds of unauthorized workers and culminating a ten-month investigation. See Aldana, supra note 13, at 1092-96.
122. See U.S. Immigration&Customs Enforcement, supra note 90 ("The presence of illegal aliens at a business does not necessarily mean the employer is responsible. Developing sufficient evidence against employers requires complex, white-collar crime investigations that can take years to bear fruit."). While the presence of unauthorized workers at a particular worksite does not mean that the employer can be held liable under IRCA, as has been long recognized by scholars, many employers can comport with IRCA'S prohibition against hiring unauthorized workers as a matter of law while still knowingly hiring unauthorized workers as a matter of fact. See Calavita, supra note 78, at 1060 ("Through [IRCA'S] affirmative defense and good faith provisions, Congress guaranteed that conformity with the paperwork requirements would be taken as an indication of compliance, there by ensuring that violations of the 'knowing hire' provision-the real meat of the law- would be virtually risk-free.").
123. Some have characterized employers as "gatekeepers" in the larger system of unauthorized immigration. See Manns, supra note 4, at 893-94.
124. See 8 U.S.C. § 1321(a) (2006).
125. See Mariano-Florentino Cuéllar, The Tenuous Relationship Between the Fight Against Money Laundering and the Disruption of Criminal Finance, 93 J. CRIM. L.&CRIMINOLOGY 311, 324 (2002).
126. See Leandra Lederman, Statutory Speed Bumps: The Roles Third Parties Play in Tax Compliance, 60 STAN. L. REV. 695, 698 (2007) (describing how tax law is structured so that employers must withhold taxes from their employees, and remit those taxes to the government, which suggests that "[s]tructural systems that engage third parties to help facilitate compliance with the federal income tax are thus highly successful").
127. Brady Act, 18 U.S.C. § 922 (2006).
128. Ronald Noble and Court Golumbic explain:"Money laundering" as a criminal term first arose in the United States, in reference to the Mafia's process of commingling illicit income, "dirty money," with cash receipts of legitimate businesses in order to make the dirty money also appear legitimate, or "clean."... Today, "money laundering" is used to describe the role Swiss banks played in providing secret accounts to protect the assets of Nazis during World War ii. The term is also used to refer to the process of funneling foreign funds into the coffers of U.S. presidential candidates in alleged violations of U.S. laws. Whatever the context, money laundering involves disguising the source or use of illicitly derived money to make its subsequent use appear legitimate.Ronald K. Noble&Court E. Golumbic, A New Anti-Crime Framework for the World: Merging the Objective and Subjective Models for Fighting Money Laundering, 30 N.Y.U. J. INT'L L.&POL. 79, 79-80 (1997).
129. See id. at 92 ("Tainted funds must pass through banks and financial institutions at some point before the link between the funds and their criminal origin has become sufficiently attenuated.").
130. Congress set out to rein in "the emerging class of professional money launderers comprising bankers, lawyers, accountants, and other professionals who [were] willing to look the other way for a price." KRIS HINTERSEER, CRIMINAL FINANCE: THE POLITICAL ECONOMY OF MONEY LAUNDERING IN A COMPARATIVE LEGAL CONTEXT 193 (2002). As
131. Hinterseer observes, globalization, technological innovation, and deregulation have created a banking culture that has become more "dynamic and aggressive," which has meant "for regulators one of the fundamental challenges concerns how to create the appropriate incentives to ensure financial institutions adopt a compliance culture." Id. at 338.While Congress began targeting money laundering as early as 1970, it really stepped up its efforts in 1986 by passing the Money Laundering Control Act (MLCA), which for the first time truly incentivized banks and other financial institutions to aid the federal effort in fighting money laundering. Pre-MLCA, the public revelation that a financial institution had some association with a money laundering scheme meant that it had to contend only with negative media attention and diminished reputation. But post-MLCA, Congress ensured that these same institutions would incur serious, concrete costs, including a fine, which was either $500,000 or twice the sum of the laundered money (whichever amount was greater), or up to twenty years of imprisonment. See 18 U.S.C. § 1956(a)(1)(B) (2006).
132. In upholding the constitutionality of these reporting and recordkeeping duties, the Supreme Court has noted:Congress not illogically decided that if records of transactions of negotiable instruments were to be kept and maintained, in order to be available as evidence under customary legal process if the occasion warranted, the bank was the most easily identifiable party to the instrument and therefore should do the recordkeeping. Cal. Bankers Ass'n v. Shultz, 416 U.S. 21, 49 (1974). The Court in Shultz went out of its way to disabuse the bank Petitioners of the notion that they were "complete bystanders" or "conscripted neutrals" but rather concluded that they were "parties to the instruments with a substantial stake in their continued availability and acceptance." Id. at 48-49.
133. 103.Manns, supra note 4, at 893, 895-98.
134. Id. at 898 ("Because of their commercial or professional relationships, gatekeepers may enjoy privileged access to information about prospective wrongdoing or skills that may allow them to process and recognize potential illegal acts in cost-effective ways.").
135. Manns posits that monitoring duties could be shared with private entities, like unauthorized immigrants themselves or other firms, who could be incentivized to report employers that fail to carry out their verification duties. See id. at 945-60.
136. Diaz v. Kay-Dix Ranch, 88 Cal. Rptr. 443, 448-49 (Ct. App. 1970). What is so interesting about Diaz is the lengths the court went to lay out the sort of legal sea change it envisioned as necessary to fight unauthorized immigration. It effectively sketched out the blueprints for our modern employer sanctions regime. The court was as specific about employer duties as it was casual about diminishing the constitutional rights of workers. Putting to one side "possible restrictions on inquiry emanating from civil rights legislation," id. at 599 n.12, the court would have employers conduct a "simple interrogation" at the workplace, which would require them to obtain and examine social security cards, along with birth certificates, vehicle operating licenses, and alien registration cards. Id. at 449-50. Like immigration officers, employers would be required "to determine the status, legal or illegal, of each new worker[,]" and would do so under the threat of punishment "by fine or jail." Id. at 450. In what can only be read as a judicial mandate to the legislature, the court suggests that "[m]ultiple injunctions covering a wide segment of California agriculture would have the cumulative effect of a statutory regulation, administered by the superior courts through the medium of contempt hearings." Id.
137. De Canas v. Bica, 424 U.S. 351, 357 (1976). It is well known as a historical matter that employers have favored unauthorized immigrant workers. As Aristide Zolberg observes, much of U.S. immigration policy has been informed by the clash between "capitalists eager to maximize their labor supply against defenders of the traditional boundaries of American society, whom historians subsequently labeled 'nativists,' and urban wage workers, who perceived immigrants as a threat to their living and an obstacle to the organization of a labor movement." ZOLBERG, supra note 25, at 5.
138. See Robert Bach&Doris Meissner, Employment and Immigration Reform: Employer Sanctions Four Years Later, in THE PAPER CURTAIN, supra note 82, at 285 ("IRCA reinforced the idea that labor market protections and immigration regulations are closely intertwined. Employers who hire illegal aliens benefit just as do those who offer subminimum wages and poor working conditions. IRCA addressed the same issues of responsibility, burden sharing, competitiveness, and productivity that are inherent in any workplace oriented legislation.").
139. U.S. IMMIGRATION POLICY AND THE NATIONAL INTEREST: THE FINAL REPORT AND RECOMMENDATIONS OF THE SELECT COMMISSION ON IMMIGRATION AND REFUGEE POLICY 41 (1981) [hereinafter SCIRP REPORT]. As others have pointed out, the SCIRP Report constituted the most significant study of the period leading up to IRCA'S passage. See Wishnie, supra note 4, at 194 n.4.
140. SCIRP REPORT, supra note 109, at 41.
141. Id. at 42 (emphasis added).
142. Id. at 47.
143. See, e.g., Diaz v. Kay-Dix Ranch, 88 Cal. Rptr. 443, 446-47 (Ct. App. 1970) (characterizing the "illegal entrant" or "wetback" as a "considerable force in the farm labor market" because "illegal entrants are able to blend into the local labor force").
144. Motomura, supra note 37, at 2069 (quoting F. Ray Marshall, Economic Factors Influencing the International Migration of Workers, in Views ACROSS THE BORDER 163, 169 (Stanley R. Ross ed., 1978)).
145. One of the primary concerns that the SCIRP Report focused on was the reality that employers could hire unauthorized immigrants and fear nothing more than the possibility of having to incur the cost of replacing removed unauthorized immigrant workers. As the SCIRP Report notes, "Even if an employer is found to be employing undocumented workers, the penalty is merely the cost of finding and training replacements. Furthermore, the employer is free to hire still more undocumented/illegal aliens without incurring any additional penalties." SCIRP REPORT, supra note 109, at 61.
146. Nessel, supra note 4, at 359.
147. Problems in the Current Employment Verification and Worksite Enforcement System, Hearing Before the Subcomm. on Immigration, Citizenship, Refugees, Border Sec.&Int'l Law of the H. Comm. on the Judiciary, 110th Cong. 40 (2007) (statement of John Shandley, Senior Vice President of Human Resources, Swift&Company) (emphasis added), available at http://judiciary.house.gov/hearings/printers/110th/34925.pdf. Some have suggested that workplace enforcement in the form of sanctions and raids constitutes, at best, exercises of State power designed to achieve symbolic rather than actual enforcement goals. See Calavita, supra note 78, at 1060 ("Facing a contradiction between political and economic forces, legislators produced a law whose effect was to be solely symbolic."); Pham, supra note 4, at 817 ("Measured over time, the real impact of employer sanctions may be a symbolic one.").
148. In a recent symposium examining privatization, Mark Moore observed that one of the challenges wrought by privatization involves the shifting of "the arbiter of value from a political process focused on defining collective ambitions and aspirations to an individual deciding whether something is good in his or her own (more or less selfish, hedonistic, and materialistic) terms." Mark H. Moore, Introduction: Public Laws in an Era of Privatization, 116 HARV. L. REV. 1212, 1215 (2003).
149. As Martha Minow observes, the privatization phenomenon involves not one type, but rather a "continuum of relationships between government and private groups," where the State encourages, exempts, funds, partners, and charters the private sector in order to serve the public's various needs. Martha Minow, Public and Private Partnerships: Accounting for the New Religion, 116 HARV. L. REV. 1229, 1255 (2003).
150. The privatization literature's center is occupied by discussions about governmental entities contracting out services to private actors, who are charged with the responsibility of delivering those services for the public's benefit. See Jody Freeman, Extending Public Law Norms Through Privatization, 116 HARV. L. REV. 1285, 1286-89 (2003) (explaining that privatization in the American context often means contracting out public services to private entities).
151. The conceptualization of the state as a consumer also signifies a shift in our culture of governance where public actors evince a newfound faith in market-style competition as a way ensuring sound governance. See Minow, supra note 119, at 1230. That the state is increasingly turning to for-profit rather than nonprofit private entities demonstrates the extent to which market-style privatization has taken hold, even though strictly speaking, for-profit and nonprofit entities fall on the same side of the public/private divide. See Jody Freeman, The Private Role in Public Governance, 75 N.Y.U. L. REV. 543, 552 (2000).
152. Id. at 597.
153. Minow, supra note 119, at 1238-40.
154. See Sharon Dolovich, State Punishment and Private Prisons, 55 DUKE L.J. 437 (2005). But see Alexander Volokh, Privatization and the Law and Economics of Political Advocacy, 60 STAN. L. REV. 1197 (2008).
155. P.W. SINGER, CORPORATE WARRIORS: THE RISE OF THE PRIVATIZED MILITARY INDUSTRY (2003).
156. See Laura A. Dickinson, Government for Hire: Privatizing Foreign Affairs and the Problem of Accountability Under International Law, 47 WM.&MARY L. REV. 135, 154(2005).
157. Elizabeth E. Joh, Conceptualizing the Private Police, 2005 UTAH L. REV. 573, 611;
158. Elizabeth E. Joh, The Paradox of Private Policing, 95 J. CRIM. L.&CRIMINOLOGY 49, 51-52 (2004).
159. Jon D. Michaels, All the President's Spies: Private-Public Intelligence Partnerships in the War on Terror, 96 CAL. L. REV. 901, 904 (2008).
160. Id.
161. Alexandra Natapoff, Snitching: The Institutional and Communal Consequences, 73 U. CIN. L. REV. 645, 649-50 (2004) (citations omitted).
162. Kenneth A. Bamberger, Regulation as Delegation: Private Firms, Decisionmaking, and Accountability in the Administrative State, 56 DUKE L.J. 377, 440 (2006).
163. IMMIGRATION REFORM&CONTROL, S. REP. NO. 98-62, at 8 (1983).
164. U.S. Immigration&Customs Enforcement, supra note 90.
165. Freeman, supra note 120, at 1344.
166. See MARTHA MINOW, PARTNERS, NOT RIVALS 3 (2002). In describing the challenges posed by public-private collaborations, specifically in the context of public funding for services administered by religious groups, Minow observes: "What remains troubling is the danger that the accumulation of specific decisions to privatize and to shift relationships between government and religion may end up altering our lives in ways we never have a chance to influence." Id.
167. See Dolovich, supra note 124, at 462;
168. see also Freeman, supra note 121, at 633 ("Private prison officials determine when infractions occur, impose punishments, and, perhaps most significantly, make recommendations to parole boards." (citations omitted)).
169. Dickinson, supra note 126, at 158.
170. Gillian E. Metzger, Privatization as Delegation, 103 COLUM. L. REV. 1367, 1383 (2003).
171. Minow, supra note 119, at 1262. For this reason, given the particular vulnerability of prisoners, some have argued that prison management should never be privatized. See Dolovich, supra note 124. But see Volokh, supra note 124.
172. In creating a framework for identifying which types of privatization schemes ought to be subject to public oversight and regulation, Jody Freeman argues: "From the public law perspective, the inability to specify a task because it is value-laden, politically contentious, and complex militates in favor of government provision or very strenuous publicization efforts." Freeman, supra note 120, at 1343. By "publicization," Freeman means the transfer of public duties to private entities under the condition that those private entities "commit themselves to traditionally public goals as the price of access to lucrative opportunities to deliver goods and services that might otherwise be provided directly by the state." Id. at 1285.
173. See David Garland, The Limits of the Sovereign State: Strategies of Crime Control in Contemporary Society, 36 BRIT. J. CRIMINOLOGY 445, 452-54 (1996). Garland notes, "These campaigns, which involve extensive mass media advertising or else the mass leafleting of households, aim to raise consciousness, create a sense of duty, and thus change practices." Id. at 452.
174. Garland observes that "[o]nce 'security' ceases to be guaranteed to all citizens by a sovereign state, it tends to become a commodity, which, like any other, is distributed by market forces rather than according to need." Id. at 463.
175. David Alan Sklansky, Private Police and Democracy, 43 AM. CRIM. L. REV. 89,90 (2006).
176. Minow, supra note 119, at 1263.
177. U.S. GEN. ACCOUNTING OfFICE, IMMIGRATION REFORM: EMPLOYER SANCTIONS AND THE QUESTION OF DISCRIMINATION 1, 3 (1990), available at http://archive.gao.gov/ d24t8/140974.pdf.
178. For an interesting exploration of the possibilities of using auditing to monitor executive discretion, see Mariano-Florentino Cuellar, Auditing Executive Discretion, 82 NOTRE DAME L. REV. 227 (2006).
179. one interesting scenario might involve employers anonymously requesting the inspection of the workplaces of their competitors. This involves an interesting anticompetitive, rather than antiexploitation, rationale for the auditing system.
180. This is precisely the set of facts that caused Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984), to come before the Court.
181. Revoking IRCA'S employer sanctions provision would moot Hoffman Plastic Compounds's holding that IRCA prohibits unauthorized immigrant workers from pursuing backpay. See Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 147-49 (2002) (explaining that IRCA changed the "legal landscape" by prohibiting whatever power the NLRB had to order backpay awards to unauthorized immigrant workers).
182. See Preston, supra note 64, at A1.
183. In re Herrera-Priego, Decision and Order of the Immigration Judge (July 10, 2003) (on file with author).
184. Operations Instruction 287.3a provides that "whenever information received from any source creates suspicion that an INS enforcement action might involve the Service in a labor dispute, a reasonable attempt should be made by Service enforcement officers to determine whether there is a labor dispute in progress." Id. at 4.
185. Id. at 24.
186. David Sklansky argues that the "paramount benefit of studying private security... is the new insight we can gain into old, familiar problems: the regulation of public police, the limits of state action, and the affirmative duties of government." David A. Sklansky, The Private Police, 46 UCLA L. REV. 1165, 1171 (1999);
187. see also Charlie Savage, Nina Bernstein&Robert Gebeloff, Vetted Judges More Likely to Reject Asylum Bids, N.Y. TIMES, Aug. 24, 2008, at A17.
188. For example, under the J-1 visa system, foreign doctors who come to the United States for further medical training are given the option of staying permanently if they agree to provide medical care to poorer, underserved communities for a period of years. At the conclusion of their service, these doctors are given the opportunity to obtain permanent residency and eventually citizenship. But supervising physicians might direct the J-1 foreign doctors away from the intended communities, and toward more affluent communities, where they can perform more expensive procedures for patients with more comprehensive insurance coverage. See Marshall Allen, Indentured Doctors, LAS VEGAS SUN, Sept. 30, 2007, at A1 ("There is a financial motive to work the foreign doctors long hours outside the underserved areas: The J-1 doctor makes the most money for his boss by performing higher- paying procedures in hospitals or clinics that serve patients with good insurance coverage. Or, J-1 doctors can be used to rake in revenue through multiple call shifts-12- or 24-hour hospital assignments during which they admit and treat walk-in patients.").
189. Nina Bernstein&Angelica Medaglia, An Agent, a Green Card, and a Demand for Sex, N.Y. TIMES, Mar. 21, 2008, at A1.
190. See Jaya Ramji-Nogales, Andrew I. Schoenholtz&Phillip G. Schrag, Refugee Roulette: Disparities in Asylum Adjudication, 60 STAN. L. REV. 295 (2008). © 2009 by the Board of Trustees of the Leland Stanford Junior University.