Undocumented immigrants in the workplace: The fallacy of labor protection and the need for reform

Harvard Civil Rights-Civil Liberties Law Review

Volumn 36, Issue 2, 2001, Pages

  Nessel, Lori A ^a  

^a SETON HALL UNIVERSITY   (United States)

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EID: 7444269958     PISSN: 00178039     EISSN: None     Source Type: Journal    
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References (292)

1. H.R. REP. NO. 99-682, pt. 1, at 58 (1986), reprinted in 1986 U.S.C.C.A.N. 5649, 5662. The House Education and Labor Committee Report on the Immigration Reform and Control Act ("IRCA") states: In addition, the committee does not intend that any provision of this Act would limit the powers of State or Federal labor standards agencies such as . . . the National Labor Relations Board . . . in conformity with existing law, to remedy unfair practices committed against undocumented employees for exercising their rights before such agencies or for engaging in activities protected by these agencies. To do otherwise would be counter-productive of our intent to limit the hiring of undocumented employees and the depressing effect on working conditions caused by their employment. Id., pt. 2, at 8-9, reprinted in 1986 U.S.C.C.A.N. 5649, 5758.
2. Ibrahim J. Wani, Truth, Strangers, and Fiction: The Illegitimate Uses of Legal Fiction in Immigration Law, 11 CARDOZO L. REV. 51, 53 (1989).
3. Montero v. INS, 124 F.3d 381, 382 (2d Cir. 1997).
4. National Labor Relations Act (NLRA) of 1935, ch. 372, 49 Stat. 449 (codified as amended at 29 U.S.C. §§ 151-169 (1994)). Included in the NLRB complaint were charges that the company deprived workers of benefits and overtime pay; fired, laid off, and refused to reinstate union supporters; threatened to close the garment factory and/or fire employees who engaged in protected concerted activity; promised additional benefits if the workers would repudiate the union; physically assaulted one union supporter; instructed workers not to wear pro-union shirts; demanded that workers reveal the identity of pro-union colleagues; and unlawfully interrogated employees about their union affiliation. See Order Further Consolidating Cases, Consolidated Amended Complaint and Notice of Hearing at 7-19, STC Knitting Mills, Inc. (No. 29-CA-16950) (unpublished NLRB order filed Jan. 15, 1993) (on file with author).
5. Order Further Consolidating Cases, Consolidated Amended Complaint and Notice of Hearing at 7, STC Knitting Mills, Inc. (No. 29-CA-16950). The Supreme Court recognizes that, regardless of immigration status, an employer who threatens to contact the INS or constructively discharges a worker by instigating an INS investigation in retaliation for exercising protected labor rights commits an unfair labor practice prohibited by the NLRA. Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984). For further discussion of Sure-Tan and its progeny, see infra Part II.
6. Pursuant to the Immigration Reform and Control Act (IRCA) of 1986, Pub. L. No. 99-603, § 101(a)(1), 100 Stat. 3359, 3360, any employer who knowingly hires undocumented workers is subject to monetary sanctions. Immigration and Nationality Act (INA) § 274A, 8 U.S.C. § 1324a (1994). Thus, the employer was inviting a fine by reporting its undocumented workers to the INS.
7. See Montero, 124 F.3d 383-84.
8. Brief of Amicus Curiae Asian American Legal Defense and Education Fund at 3, Montero (No. 96-4130); see also Elizabeth Ruddick, Silencing Undocumented Workers: U.S. Agency Policies Undermine Labor Rights and Standards, IMMIGR. NEWSL., June 1996, at 1, 10.
9. Order Further Consolidating Cases, Consolidated Amended Complaint and Notice of Hearing at 19-20, STC Knitting Mills, Inc. (No. 29-CA-16950).
10. See Montero, 124 F.3d at 384-86. The Second Circuit held that evidence obtained as a result of the employer's violation of the NLRA is admissible against the undocumented worker in deportation proceedings even where the basis for the raid itself is the employer's NLRA violation. See id. at 384-85; see also infra notes 132-152 and accompanying text.
11. The INS estimates that about 5 million undocumented immigrants resided in the United States as of October 1996. IMMIGRATION & NATURALIZATION SERV., U.S. DEP'T OF JUSTICE, ILLEGAL ALIEN RESIDENT POPULATION, http://www.ins.usdoj.gov/graphics/ aboutins/statistics/illegalalien/index.htm (last modified Dec. 20, 2000). However, the results of the 2000 census have prompted experts to now estimate the undocumented population at 7.1 to 9 million people. Susan Sachs, A Hue, and a Cry, in the Heartland, N.Y. TIMES, Apr. 8, 2001, § 4, at 5. As one INS employee explains, "If you go to any hotel, any restaurant, any mall, you're going to see illegal workers." Jerd Smith, Working in the Shadows Illegal Aliens a Fact of Life in Colorado's Economy, ROCKY MTN. NEWS, Apr. 18, 1999, at 1. John Fraser, Acting Assistant Secretary in the Employment Standards Administration of the Department of Labor, states: "[N]ew unskilled immigrants, both legal and illegal, tend to congregate in low-wage, low-skill jobs in marginally profitable, low-capital, small, often new and family-run enterprises; in temporary, seasonal, or irregular employment; and in the underground economy." Maria Isabel Medina, The Criminalization of Immigration Law: Employer Sanctions and Marriage Fraud. 5 GEO. MASON L. REV. 669, 691 (1997).
12. The INS estimates that about 5 million undocumented immigrants resided in the United States as of October 1996. IMMIGRATION & NATURALIZATION SERV., U.S. DEP'T OF JUSTICE, ILLEGAL ALIEN RESIDENT POPULATION, http://www.ins.usdoj.gov/graphics/ aboutins/statistics/illegalalien/index.htm (last modified Dec. 20, 2000). However, the results of the 2000 census have prompted experts to now estimate the undocumented population at 7.1 to 9 million people. Susan Sachs, A Hue, and a Cry, in the Heartland, N.Y. TIMES, Apr. 8, 2001, § 4, at 5. As one INS employee explains, "If you go to any hotel, any restaurant, any mall, you're going to see illegal workers." Jerd Smith, Working in the Shadows Illegal Aliens a Fact of Life in Colorado's Economy, ROCKY MTN. NEWS, Apr. 18, 1999, at 1. John Fraser, Acting Assistant Secretary in the Employment Standards Administration of the Department of Labor, states: "[N]ew unskilled immigrants, both legal and illegal, tend to congregate in low-wage, low-skill jobs in marginally profitable, low-capital, small, often new and family-run enterprises; in temporary, seasonal, or irregular employment; and in the underground economy." Maria Isabel Medina, The Criminalization of Immigration Law: Employer Sanctions and Marriage Fraud. 5 GEO. MASON L. REV. 669, 691 (1997).
13. The INS estimates that about 5 million undocumented immigrants resided in the United States as of October 1996. IMMIGRATION & NATURALIZATION SERV., U.S. DEP'T OF JUSTICE, ILLEGAL ALIEN RESIDENT POPULATION, http://www.ins.usdoj.gov/graphics/ aboutins/statistics/illegalalien/index.htm (last modified Dec. 20, 2000). However, the results of the 2000 census have prompted experts to now estimate the undocumented population at 7.1 to 9 million people. Susan Sachs, A Hue, and a Cry, in the Heartland, N.Y. TIMES, Apr. 8, 2001, § 4, at 5. As one INS employee explains, "If you go to any hotel, any restaurant, any mall, you're going to see illegal workers." Jerd Smith, Working in the Shadows Illegal Aliens a Fact of Life in Colorado's Economy, ROCKY MTN. NEWS, Apr. 18, 1999, at 1. John Fraser, Acting Assistant Secretary in the Employment Standards Administration of the Department of Labor, states: "[N]ew unskilled immigrants, both legal and illegal, tend to congregate in low-wage, low-skill jobs in marginally profitable, low-capital, small, often new and family-run enterprises; in temporary, seasonal, or irregular employment; and in the underground economy." Maria Isabel Medina, The Criminalization of Immigration Law: Employer Sanctions and Marriage Fraud. 5 GEO. MASON L. REV. 669, 691 (1997).
14. The INS estimates that about 5 million undocumented immigrants resided in the United States as of October 1996. IMMIGRATION & NATURALIZATION SERV., U.S. DEP'T OF JUSTICE, ILLEGAL ALIEN RESIDENT POPULATION, http://www.ins.usdoj.gov/graphics/ aboutins/statistics/illegalalien/index.htm (last modified Dec. 20, 2000). However, the results of the 2000 census have prompted experts to now estimate the undocumented population at 7.1 to 9 million people. Susan Sachs, A Hue, and a Cry, in the Heartland, N.Y. TIMES, Apr. 8, 2001, § 4, at 5. As one INS employee explains, "If you go to any hotel, any restaurant, any mall, you're going to see illegal workers." Jerd Smith, Working in the Shadows Illegal Aliens a Fact of Life in Colorado's Economy, ROCKY MTN. NEWS, Apr. 18, 1999, at 1. John Fraser, Acting Assistant Secretary in the Employment Standards Administration of the Department of Labor, states: "[N]ew unskilled immigrants, both legal and illegal, tend to congregate in low-wage, low-skill jobs in marginally profitable, low-capital, small, often new and family-run enterprises; in temporary, seasonal, or irregular employment; and in the underground economy." Maria Isabel Medina, The Criminalization of Immigration Law: Employer Sanctions and Marriage Fraud. 5 GEO. MASON L. REV. 669, 691 (1997).
15. E.g., Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984) (holding that undocumented workers are protected by the NLRA); Espinoza v. Farah Mfg. Co., 414 U.S. 86 (1973) (undocumented workers included within the meaning of "employee" under Title VII of the Civil Rights Act of 1964); Patel v. Quality Inn S., 846 F.2d 700 (11th Cir. 1988) (holding that undocumented workers should be considered "employees" within the meaning of the Fair Labor Standards Act). In many states undocumented workers are also entitled to workers compensation if injured on the job, regardless of their immigration status. E.g., Dowling v. Slotnik, 712 A.2d 396, 398 (Conn. 1998) (holding that claim for work-related injury by undocumented worker is within limits of Workers' Compensation Act); Reinforced Earth Co. v. Workers' Comp. Appeal Bd. (Astudillo), 749 A.2d 1036 (Pa. Commw. Ct. 2000) (holding that injured worker is entitled to workers compensation benefits despite unlawful immigration status where neither state nor federal law prohibited receiving benefits); see also infra note 197. But see Granados v. Windson Dev. Corp., 509 S.E.2d 290 (Va. 1999) (holding that "employee" under Virginia's Workers' Compensation Act does not include undocumented workers). The Virginia Workers' Compensation Act defines an employee as "[e]very person, including a minor, in the service of another under any contract of hire." Id. at 293. The court reasoned that the IRCA barred the employment of undocumented workers and therefore any contract for hire entered into by an unauthorized worker is void and unenforceable. Id.
16. Immigration Reform and Control Act (IRCA) of 1986, Pub. L. No. 99-603, 100 Stat. 3359.
17. See supra note 6.
18. A.P.R.A. Fuel Oil Buyers Group, Inc., 320 N.L.R.B. 408 (1995); see also infra Part IV.A.
19. See Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, §§ 40001-40703, 108 Stat. 1796, 1902-55. VAWA is Title IV of this larger act.
20. See Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, § 40701, 108 Stat. 1796, 1953-54 (amending INA § 204(a)(1), 8 U.S.C. § 1154(a)(1) (1994)); see also 8 C.F.R. § 204.2 (2000).
21. Although a full discussion of all relevant federal employment laws is beyond the scope of this Article, courts have also struggled to resolve analogous issues concerning the rights and remedies available to undocumented workers under Title VII of the Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 266 (codified as amended at 42 U.S.C. §§ 2000e to 2000e-17 (1994)), and the Fair Labor Standards Act (FLSA) of 1938, ch. 676, 52 Stat. 1060 (codified as amended at 29 U.S.C. §§ 201-219 (1994)). See supra note 12 and infra notes 27, 74, and 94 for further discussion of the interplay between immigration law and employment protection statutes.
22. 467 U.S. 883 (1984).
23. 795 F.2d 705 (9th Cir. 1986).
24. While a normative discussion of what form long-term immigration policy goals should take is beyond the scope of this Article, I argue that the role of work in forging communities within the country should impact the membership rights afforded undocumented workers. See infra Part VI.
25. Professor Linda Bosniak has referred to the status of undocumented workers as embodying a "clash between membership and exclusion." Linda S. Bosniak, Exclusion and Membership: The Dual Identity of the Undocumented Worker Under United States Law, 1988 WIS. L. REV. 955, 1007; see also Kevin R. Johnson, Los Olvidados: Images of the Immigrant, Political Power of Noncitizens, and Immigration Law and Enforcement, 1993 BYU L. REV. 1139, 1221 (referring to the "perplexing duality of the undocumented - outsiders in this country unlawfully and, at the same time, present in society").
26. Professor Linda Bosniak has referred to the status of undocumented workers as embodying a "clash between membership and exclusion." Linda S. Bosniak, Exclusion and Membership: The Dual Identity of the Undocumented Worker Under United States Law, 1988 WIS. L. REV. 955, 1007; see also Kevin R. Johnson, Los Olvidados: Images of the Immigrant, Political Power of Noncitizens, and Immigration Law and Enforcement, 1993 BYU L. REV. 1139, 1221 (referring to the "perplexing duality of the undocumented - outsiders in this country unlawfully and, at the same time, present in society").
27. Compare Montero v. INS, 124 F.3d 381 (2d Cir. 1997), with NLRB v. A.P.R.A. Fuel Oil Buyers Group, Inc., 134 F.3d 50 (2d Cir. 1997). Seemingly contradicting Montero, the A.P.R.A. Fuel decision handed down just three months after that case made the Second Circuit the first federal court of appeals since the passage of the IRCA in 1986 to award backpay to undocumented workers under the NLRA. See A.P.R.A. Fuel, 134 F.3d at 57-58.
28. See Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 892-93 (1984).
29. Id. at 891-92.
30. Id. at 893-94. In Sure-Tan, the NLRB found that the employer's reporting to the INS certain employees long known to be undocumented immigrants, in retaliation for their engaging in union activities, constituted an unfair labor practice. Id. at 887-88. The NLRB concluded that the employees had been constructively discharged and issued a remedial order including conditional reinstatement and backpay. See id. at 888-89. The court of appeals enforced the NLRB's order but modified the remedy to provide, inter alia, a six-month minimum backpay award to the undocumented workers who had voluntarily departed from the United States rather than face deportation by the INS. See NLRB v. Sure-Tan, Inc., 672 F.2d 592, 603, 606 (7th Cir. 1982).
31. Sure-Tan, 467 U.S. at 891. In cases arising under Title VII of the Civil Rights Act of 1964, the Supreme Court had interpreted the term "employee" to include undocumented workers. Espinoza v. Farah Mfg. Co., 414 U.S. 86 (1973). However, courts remain divided as to whether undocumented workers are entitled to full Title VII remedies. See infra notes 74, 94. For example, in EEOC v. Tortilleria "La Mejor," 758 F. Supp. 585 (E.D. Cal. 1991), the court held that the definitions of "employee" and "individual" include undocumented workers. See id. at 587-90. In sharp contrast, in Egbuna v. Time-Life Libraries, Inc., 153 F.3d 184 (4th Cir. 1998) (en banc), cert. denied, 525 U.S. 1142 (1999), the court held that an undocumented job applicant is not "qualified" for employment and therefore not entitled to Title VII remedies when seeking the anti-retaliation protection provided by Title VII. See id. at 186-88. For an in-depth analysis of the coverage of undocumented workers under Title VII, see Maria L. Ontiveros, To Help Those Most in Need: Undocumented Workers' Rights and Remedies Under Title VII, 20 N.Y.U. REV. L. & SOC. CHANGE 607 (1994).
32. Sure-Tan, 467 U.S. at 892.
33. Id. at 893-94. Because the Sure-Tan workers voluntarily left the country after INS apprehension (rather than waiting to be deported by the government and thus barred from re-entering for five years), the employer had argued that, notwithstanding its admitted anti-union animus, it did not constructively discharge the workers when it reported them to the INS because this was not the proximate cause of the employees' departure from the United States. Id. at 894-95. Rather, the employer asserted, it was the immigration status of the employees that was the proximate cause of their departure. Id. at 895. However, given the circumstances of the case (for example, the employer's anti-union animus, its prior knowledge of the immigration status of the workers, and its decision to report the workers to the INS only after the union's electoral victory), the Court held that the employer's action was a retaliatory constructive discharge in violation of section 8(a)(3) of the NLRA. Id. at 894-95. This section of the NLRA makes it an unfair labor practice for an employer "by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization." 29 U.S.C. § 158(a)(3) (1994).
34. The Seventh Circuit assumed that the discharged employees would end up bereft of remedy because reinstatement was conditioned upon the employees' ability to re-enter the country legally and the employees were to be considered "unavailable" for purposes of computing backpay during any period in which they were not lawfully present in the country. See Sure-Tan, 672 F.2d at 604-06. Believing that the employees were entitled to a remedy, and that a monetary remedy was necessary in order to deter unlawful conduct in the future, the court set a minimum award of six months backpay. Id. at 606.
35. Sure-Tan, 467 U.S. at 898-99.
36. See id. at 902-05.
37. Id. at 911 (Brennan, J., concurring in part and dissenting in part).
38. Id. at 911-12.
39. 795 F.2d 705 (9th Cir. 1986).
40. Id. at 717. The court noted that the Supreme Court "gave no indication that it was overruling a significant line of precedent that disregards a discriminatee's legal status, as opposed to availability to work, in determining his or her eligibility for backpay." Id. Similarly, in Bevies Co. v. Teamsters Local 986, 791 F.2d 1391 (9th Cir. 1986). cert. denied, 484 U.S. 985 (1987), the court declined to overturn an arbitrator's award of reinstatement and backpay to discharged undocumented workers who remained in the United States. The court distinguished Sure-Tan from the case before it because the Sure-Tan discriminatees had left the country and "unconditional reinstatement and backpay would have encouraged their illegal reentry." Id. at 1393. The court concluded that the Bevles workers had not been subject to any INS proceedings, meaning that "awards of reinstatement and backpay [would] not require that they reenter the country illegally" and would not encourage a violation of or conflict with the INA. Id.
41. Felbro, 795 F.2d at 719 (quoting Sure-Tan, 467 U.S. at 892-93 (citations omitted)). In Bevles, a different panel from this same court of appeals also relied on Sure-Tan: "For whatever reason. Congress has not adopted provisions in the INA making it unlawful for an employer to hire an alien who is present and working in the United States without appropriate authorization." Bevies, 791 F.2d at 1393 (quoting Sure-Tan, 467 U.S. at 892-93).
42. 791 F.2d 1391 (9th Cir. 1986), cert. denied, 484 U.S. 985 (1987).
43. The IRCA actually contained two separate but related programs aimed at identifying and legalizing undocumented migrants who could prove that they entered the United States prior to January 1, 1982 and maintained a continuous physical presence since the enactment of the IRCA. Immigration Reform and Control Act (IRCA) of 1986, Pub. L. No. 99-603, §§ 201, 302, 100 Stat. 3359, 3394, 3417. The application period for those eligible under the main program, set forth in section 201 of the IRCA, lasted for one year. See INA § 245A(a)(1)(A), 8 U.S.C. § 1255a(a)(1)(A) (1994). The second legalization program was for special agricultural workers ("SAWs") and lasted for eighteen months. See INA § 210(a)(1)(A), 8 U.S.C. § 1160(a)(1)(A); see also IMMIGRATION & NATURALIZATION SERV., U.S. DEP'T OF JUSTICE, THIS MONTH IN IMMIGRATION HISTORY: MAY 1987, at http://www.ins.gov/graphics/aboutins/history/may1987.htm (last modified May 1, 2000).
44. In addition to signaling a new approach to immigration policy, the IRCA legislation was broad enough to impact both the federal district courts and numerous other federal agencies, including the Department of Health and Human Services (the Health Care Financial Administration, the Division of State Legalization Assistance, the Office of Refugee Resettlement, the Family Support Administration, and the U.S. Public Health Service, Office of Refugee Health), the Department of Labor (the Office of Federal Contract Compliance Programs, and the Wage and Hour Division), the General Accounting Office, the Federal Social Security Administration, the Department of Education, the Federal Equal Employment Opportunity Commission, the Department of Agriculture (Food and Nutrition Service), the Census Bureau, the Department of Housing and Urban Development, and the Department of State (Bureau of Migration and Refugee Affairs). MICHAEL C. LEMAY, ANATOMY OF A PUBLIC POLICY: THE REFORM OF CONTEMPORARY AMERICAN IMMIGRATION LAW 100-01 (1994).
45. Pursuant to the INA, the employer is required to examine the employee's documents to ensure that she is authorized to work in the United States. INA § 274A(b), 8 U.S.C. § 1324a(b) (1994). Next, the employer must execute an I-9 form with the INS to attest, under penalty of perjury, that the employer did in fact examine and verify the authorization of the employee. See 8 U.S.C. § 1324a(b)(1). If the employer fails to comply with this procedure, it is subject to sanctions pursuant to §§ 1324a(e)(4), 1324a(e)(5), and 1324a(f). Pursuant to § 1324a(e)(4), the employer is ordered to cease hiring, recruiting, or referring illegal employees in violation of §§ 1324a(a)(1)(A) and 1324a(a)(2). If sanctioned under this provision, the employer is fined a civil monetary penalty and ordered to pay: (i) not less than $250 and not more than $2,000 for each unauthorized alien with respect to whom a violation of either such subsection occurred; (ii) not less than $2,000 and not more than $5,000 for each such alien in the case of a person or entity previously subject to one order under this paragraph, or (iii) not less than $3,000 and not more than $10,000 for each such alien in the case of a person or entity previously subject to more than one order under this paragraph. Id. § 1324a(e)(4)(A). There is also a defense for employers who can demonstrate that they exercised good faith in complying with the statute. Id. § 1324a(a)(3).
46. According to the U.S. Commission on Immigration Reform, the IRCA is not enforced effectively. U.S. COMM'N ON IMMIGRATION REFORM, U.S. IMMIGRATION POLICY: RESTORING CREDIBILITY (1994). "After an initial decline in border apprehensions, the number of apprehended migrants began to climb and returned to almost pre-IRCA levels, with 1.3 million apprehensions in 1995." MEXICO/U.S. BINATIONAL STUDY ON MIGRATION, BINATIONAL STUDY: MIGRATION BETWEEN MEXICO AND THE UNITED STATES 3 (1997). "In October 1996, INS released its latest estimates of the illegal alien population in the United States: some five million undocumented migrants reside in the United States, a number growing by approximately 275,000 annually." U.S. COMM'N ON IMMIGRATION REFORM, BECOMING AN AMERICAN: IMMIGRATION AND IMMIGRANT POLICY 104 (1997); see also Cecelia M. Espenoza, The Illusory Provisions of Sanctions: The immigration Reform and Control Act of 1986, 8 GEO. IMMIGR. L.J. 343 (1994) (finding that employer sanctions have failed to reduce the undocumented workforce). But see Stephen H. Legomsky, Employer Sanctions: Past and Future, in THE DEBATE IN THE UNITED STATES OVER IMMIGRATION 171 (Peter Duignan & L.H. Gann eds., 1998). Professor Legomsky criticizes the use of statistics regarding the size of the undocumented population as a barometer of the effectiveness of employer sanctions. According to Legomsky, it is difficult to know what the undocumented population is now, or what it used to be. Id. at 177. He also points out that "time comparisons reveal little about causation," since the undocumented population might have risen even more were it not for employer sanctions. Id.
47. According to the U.S. Commission on Immigration Reform, the IRCA is not enforced effectively. U.S. COMM'N ON IMMIGRATION REFORM, U.S. IMMIGRATION POLICY: RESTORING CREDIBILITY (1994). "After an initial decline in border apprehensions, the number of apprehended migrants began to climb and returned to almost pre-IRCA levels, with 1.3 million apprehensions in 1995." MEXICO/U.S. BINATIONAL STUDY ON MIGRATION, BINATIONAL STUDY: MIGRATION BETWEEN MEXICO AND THE UNITED STATES 3 (1997). "In October 1996, INS released its latest estimates of the illegal alien population in the United States: some five million undocumented migrants reside in the United States, a number growing by approximately 275,000 annually." U.S. COMM'N ON IMMIGRATION REFORM, BECOMING AN AMERICAN: IMMIGRATION AND IMMIGRANT POLICY 104 (1997); see also Cecelia M. Espenoza, The Illusory Provisions of Sanctions: The immigration Reform and Control Act of 1986, 8 GEO. IMMIGR. L.J. 343 (1994) (finding that employer sanctions have failed to reduce the undocumented workforce). But see Stephen H. Legomsky, Employer Sanctions: Past and Future, in THE DEBATE IN THE UNITED STATES OVER IMMIGRATION 171 (Peter Duignan & L.H. Gann eds., 1998). Professor Legomsky criticizes the use of statistics regarding the size of the undocumented population as a barometer of the effectiveness of employer sanctions. According to Legomsky, it is difficult to know what the undocumented population is now, or what it used to be. Id. at 177. He also points out that "time comparisons reveal little about causation," since the undocumented population might have risen even more were it not for employer sanctions. Id.
48. According to the U.S. Commission on Immigration Reform, the IRCA is not enforced effectively. U.S. COMM'N ON IMMIGRATION REFORM, U.S. IMMIGRATION POLICY: RESTORING CREDIBILITY (1994). "After an initial decline in border apprehensions, the number of apprehended migrants began to climb and returned to almost pre-IRCA levels, with 1.3 million apprehensions in 1995." MEXICO/U.S. BINATIONAL STUDY ON MIGRATION, BINATIONAL STUDY: MIGRATION BETWEEN MEXICO AND THE UNITED STATES 3 (1997). "In October 1996, INS released its latest estimates of the illegal alien population in the United States: some five million undocumented migrants reside in the United States, a number growing by approximately 275,000 annually." U.S. COMM'N ON IMMIGRATION REFORM, BECOMING AN AMERICAN: IMMIGRATION AND IMMIGRANT POLICY 104 (1997); see also Cecelia M. Espenoza, The Illusory Provisions of Sanctions: The immigration Reform and Control Act of 1986, 8 GEO. IMMIGR. L.J. 343 (1994) (finding that employer sanctions have failed to reduce the undocumented workforce). But see Stephen H. Legomsky, Employer Sanctions: Past and Future, in THE DEBATE IN THE UNITED STATES OVER IMMIGRATION 171 (Peter Duignan & L.H. Gann eds., 1998). Professor Legomsky criticizes the use of statistics regarding the size of the undocumented population as a barometer of the effectiveness of employer sanctions. According to Legomsky, it is difficult to know what the undocumented population is now, or what it used to be. Id. at 177. He also points out that "time comparisons reveal little about causation," since the undocumented population might have risen even more were it not for employer sanctions. Id.
49. According to the U.S. Commission on Immigration Reform, the IRCA is not enforced effectively. U.S. COMM'N ON IMMIGRATION REFORM, U.S. IMMIGRATION POLICY: RESTORING CREDIBILITY (1994). "After an initial decline in border apprehensions, the number of apprehended migrants began to climb and returned to almost pre-IRCA levels, with 1.3 million apprehensions in 1995." MEXICO/U.S. BINATIONAL STUDY ON MIGRATION, BINATIONAL STUDY: MIGRATION BETWEEN MEXICO AND THE UNITED STATES 3 (1997). "In October 1996, INS released its latest estimates of the illegal alien population in the United States: some five million undocumented migrants reside in the United States, a number growing by approximately 275,000 annually." U.S. COMM'N ON IMMIGRATION REFORM, BECOMING AN AMERICAN: IMMIGRATION AND IMMIGRANT POLICY 104 (1997); see also Cecelia M. Espenoza, The Illusory Provisions of Sanctions: The immigration Reform and Control Act of 1986, 8 GEO. IMMIGR. L.J. 343 (1994) (finding that employer sanctions have failed to reduce the undocumented workforce). But see Stephen H. Legomsky, Employer Sanctions: Past and Future, in THE DEBATE IN THE UNITED STATES OVER IMMIGRATION 171 (Peter Duignan & L.H. Gann eds., 1998). Professor Legomsky criticizes the use of statistics regarding the size of the undocumented population as a barometer of the effectiveness of employer sanctions. According to Legomsky, it is difficult to know what the undocumented population is now, or what it used to be. Id. at 177. He also points out that "time comparisons reveal little about causation," since the undocumented population might have risen even more were it not for employer sanctions. Id.
50. According to the U.S. Commission on Immigration Reform, the IRCA is not enforced effectively. U.S. COMM'N ON IMMIGRATION REFORM, U.S. IMMIGRATION POLICY: RESTORING CREDIBILITY (1994). "After an initial decline in border apprehensions, the number of apprehended migrants began to climb and returned to almost pre-IRCA levels, with 1.3 million apprehensions in 1995." MEXICO/U.S. BINATIONAL STUDY ON MIGRATION, BINATIONAL STUDY: MIGRATION BETWEEN MEXICO AND THE UNITED STATES 3 (1997). "In October 1996, INS released its latest estimates of the illegal alien population in the United States: some five million undocumented migrants reside in the United States, a number growing by approximately 275,000 annually." U.S. COMM'N ON IMMIGRATION REFORM, BECOMING AN AMERICAN: IMMIGRATION AND IMMIGRANT POLICY 104 (1997); see also Cecelia M. Espenoza, The Illusory Provisions of Sanctions: The immigration Reform and Control Act of 1986, 8 GEO. IMMIGR. L.J. 343 (1994) (finding that employer sanctions have failed to reduce the undocumented workforce). But see Stephen H. Legomsky, Employer Sanctions: Past and Future, in THE DEBATE IN THE UNITED STATES OVER IMMIGRATION 171 (Peter Duignan & L.H. Gann eds., 1998). Professor Legomsky criticizes the use of statistics regarding the size of the undocumented population as a barometer of the effectiveness of employer sanctions. According to Legomsky, it is difficult to know what the undocumented population is now, or what it used to be. Id. at 177. He also points out that "time comparisons reveal little about causation," since the undocumented population might have risen even more were it not for employer sanctions. Id.
51. See H.R. REP. NO. 99-682, pt. 1, at 45-46 (1986), reprinted in 1986 U.S.C.C.A.N. 5649, 5649-50. The purpose of the legislation was "to close the back door on illegal immigration so that the front door on legal immigration may remain open. The principal means of closing the back door . . . is through employer sanctions." Id.; see also LEMAY, supra note 40, at 72 (analyzing assumptions behind the IRCA, including the belief that illegal immigration is primarily due to economic factors pulling immigrants to the United States rather than political and economic conditions pushing people out of their home countries).
52. See Christopher W. Rudolph, Globalization, Sovereignty, and Migration: A Conceptual Framework, 3 UCLA J. INT'L L. & FOREIGN AFF. 325, 330-31 (1998-1999); see also STEPHEN CASTLES & MARK MILLER, THE AGE OF MIGRATION: INTERNATIONAL POPULATION MOVEMENTS IN THE MODERN WORLD 104 (2d ed. 1998) (discussing international migration as largely a consequence of "the differentials in life expectancy, demography, economic structure, social conditions and political stability between the industrial democracies and most of the rest of the world").
53. See Christopher W. Rudolph, Globalization, Sovereignty, and Migration: A Conceptual Framework, 3 UCLA J. INT'L L. & FOREIGN AFF. 325, 330-31 (1998-1999); see also STEPHEN CASTLES & MARK MILLER, THE AGE OF MIGRATION: INTERNATIONAL POPULATION MOVEMENTS IN THE MODERN WORLD 104 (2d ed. 1998) (discussing international migration as largely a consequence of "the differentials in life expectancy, demography, economic structure, social conditions and political stability between the industrial democracies and most of the rest of the world").
54. See PETER STALKER, WORKERS WITHOUT FRONTIERS: THE IMPACT OF GLOBALIZATION ON INTERNATIONAL MIGRATION 10 (2000) ("Globalization is not a monolithic, unstoppable juggernaut, but rather a complex web of interrelated processes - some of which are subject to greater control than others.").
55. As summarized by Stalker, the predominant theoretical models for modern migration are: neoclassical economic theory (considering "differences in supply and demand for labor in sending and receiving countries" and concluding that workers move in response to higher wages); new economics of migration (migration decisions are not made by individuals, but by families or households); dual labor market theory (migration is viewed not as an intermediate phase, but rather a "permanent and necessary feature of modern industrial societies"); world-systems theory (describing "how flows of capital, goods, and labor fit together and are interlinked" and how, in poor countries, capitalist "penetration destroys traditional sources of income" and at the same time creates a stream of mobile labor, some of which flows into the international migration workforce). Id. at 131-32. Rather than accept any one theory as adequate explanation for the interaction and interdependence of globalization and migration, Nikos Papastergiadis offers this definition of turbulence: "Turbulence is not just a useful noun for describing the unsettling effect of an unexpected force that alters your course of movement; it is also a metaphor for the broader levels of interconnection and interdependency between the various forces that are in play in the modern world." NIKOS PAPASTERGIADIS, THE TURBULENCE OF MIGRATION: GLOBALIZATION, DETERRITORIALIZATION, AND HYBRIDITY 4 (2000); see also ALEJANDRO PORTES & RUBEN G. RUMBAUT, IMMIGRANT AMERICA: A PORTRAIT 224 (1990) (arguing that the "push-pull" theory of migration fails to take into account "differences among collectivities, primarily nation-states, in the size and directionality of migrant flows, and differences among individuals within the same country or region in their propensities to migrate").
56. As summarized by Stalker, the predominant theoretical models for modern migration are: neoclassical economic theory (considering "differences in supply and demand for labor in sending and receiving countries" and concluding that workers move in response to higher wages); new economics of migration (migration decisions are not made by individuals, but by families or households); dual labor market theory (migration is viewed not as an intermediate phase, but rather a "permanent and necessary feature of modern industrial societies"); world-systems theory (describing "how flows of capital, goods, and labor fit together and are interlinked" and how, in poor countries, capitalist "penetration destroys traditional sources of income" and at the same time creates a stream of mobile labor, some of which flows into the international migration workforce). Id. at 131-32. Rather than accept any one theory as adequate explanation for the interaction and interdependence of globalization and migration, Nikos Papastergiadis offers this definition of turbulence: "Turbulence is not just a useful noun for describing the unsettling effect of an unexpected force that alters your course of movement; it is also a metaphor for the broader levels of interconnection and interdependency between the various forces that are in play in the modern world." NIKOS PAPASTERGIADIS, THE TURBULENCE OF MIGRATION: GLOBALIZATION, DETERRITORIALIZATION, AND HYBRIDITY 4 (2000); see also ALEJANDRO PORTES & RUBEN G. RUMBAUT, IMMIGRANT AMERICA: A PORTRAIT 224 (1990) (arguing that the "push-pull" theory of migration fails to take into account "differences among collectivities, primarily nation-states, in the size and directionality of migrant flows, and differences among individuals within the same country or region in their propensities to migrate").
57. Susan Martin, Politics and Policy Responses to Illegal Migration in the U.S., Address at the Conference on Managing Migration in the 21st Century (June 21-23, 1998), at http://migration.ucdavis.edu/mm21/Susan.html; see also EVERARD MEADE, SPECIAL REPORT: CONGRESS REVIEWS THE INS INTERIOR ENFORCEMENT STRATEGY (1999) (arguing that economic development in "migrant sending countries" would both reduce pressure to migrate to the United States and increase demand for American consumer goods and other exports in the developing world). According to Stalker, notwithstanding the fact that industrial nations will also want a supply of cheap immigrant labor, "the supply could dry up if closer and deeper integration of economies promotes economic development in poorer countries that eventually blunts the incentive to emigrate." STALKER, supra note 45, at 139.
58. Susan Martin, Politics and Policy Responses to Illegal Migration in the U.S., Address at the Conference on Managing Migration in the 21st Century (June 21-23, 1998), at http://migration.ucdavis.edu/mm21/Susan.html; see also EVERARD MEADE, SPECIAL REPORT: CONGRESS REVIEWS THE INS INTERIOR ENFORCEMENT STRATEGY (1999) (arguing that economic development in "migrant sending countries" would both reduce pressure to migrate to the United States and increase demand for American consumer goods and other exports in the developing world). According to Stalker, notwithstanding the fact that industrial nations will also want a supply of cheap immigrant labor, "the supply could dry up if closer and deeper integration of economies promotes economic development in poorer countries that eventually blunts the incentive to emigrate." STALKER, supra note 45, at 139.
59. CASTLES & MILLER, supra note 44, at 291-93.
60. See Guillermina Jasso et al., The Changing Skill of New Immigrants to the United States: Recent Trends and Their Determinants, in ISSUES IN THE ECONOMICS OF IMMIGRATION, 185, 219 (George J. Borjas ed., 2000) (discussing the results gleaned from INS data for 1972-1990, which indicate that a "higher per capita income in the origin country leads to a statistically significant drop in out-migration rates").
61. Nikos Papastergiadis calls for a new cross-disciplinary approach to address migration problems, noting that Migration studies are no longer confined to the domain of sociology, demography, politics and economics. Key contributions have also been made by anthropology, history, psychology, geography, philosophy, cultural studies and art criticism. . . . Concepts like deterritorialization and hybridity do not reside exclusively in any particular discipline, they have served as "bridging concepts," extending the parameters of analysis and highlighting a mode of explanation which is alert to the role of difference and contingency in contemporary society. PAPASTERGIADIS, supra note 46, at 5.
62. "Although the [immigration reform] debate can be framed in the cool language of economics and demographics, immigration remains a highly emotional subject, with immigration policy a window into the national psyche." LEMAY, supra note 40, at 4 (quoting 9 IN DEFENSE OF THE ALIEN, at ix (Lydio Tomasi ed., 1987)). Additionally, the growing proportion of immigrant voters and presence of undocumented workers in the country has resulted in a simultaneous increase in sensitivity to multicultural concerns and anti-immigrant backlash in the national political arena. See CASTLES & MILLER, supra note 44, at 268-73. According to Castles and Miller, issues such as illegal migration and undocumented workers have influenced major party platforms and candidate selection, as parties make efforts either to capture immigrant voting blocks or, conversely, to capture voters opposed to immigrant-friendly policies. See id.
63. See, e.g., Legomsky, supra note 42, at 187 (noting that, in February 1996, "the Justice Department stepped up its enforcement efforts, doubling the number of employer sanctions investigators").
64. See Immigration and Naturalization Service's Interior Enforcement Strategy: Before the Subcomm. on Immigration and Claims of the House Comm. on the Judiciary, 106th Cong. (1999) (statement of Muzaffar A. Chishti, Director, Immigration Project, Union of Needletrades, Industrial and Textile Employees), microformed on CIS No. 2000-H521-91 (Cong. Info. Serv.). In his testimony before Congress, Mr. Chishti commended the INS for "moving away from its focus on workplace raids," but strongly disagreed with new initiatives "seeking increased employer cooperation in INS audits and surveys, and increasing cooperation between INS and local law enforcement and community agencies." Id. at 94. Based on past experience in which local police have substituted ethnicity and race for reasonable cause, Mr. Chishti warns that these new cooperative ventures may well lead to civil rights violations. See id.
65. Since March 1999, the INS has focused its interior enforcement efforts on worksite enforcement initiatives in industries that employ large numbers of Latino workers. Operation Vanguard has been labeled "racist" for "target[ing] Spanish and Latino members of the community." Scott Bauer, Governor's Task Force on INS Enforcement Meets, ASSOCIATED PRESS NEWSWIRES, Sept. 29, 1999. By 1997, Latinos constituted an estimated fifty to eighty percent of the meatpacking workforce in the Great Plains states. See Donald Kerwin. The Fight for Dignity: Immigrant Laborers in the Restructured American Economy, IN ALL THINGS, Mar. 2000, http://www.jesuit.org/JCOSIM/in_all_things/march_2000/five. html.
66. Since March 1999, the INS has focused its interior enforcement efforts on worksite enforcement initiatives in industries that employ large numbers of Latino workers. Operation Vanguard has been labeled "racist" for "target[ing] Spanish and Latino members of the community." Scott Bauer, Governor's Task Force on INS Enforcement Meets, ASSOCIATED PRESS NEWSWIRES, Sept. 29, 1999. By 1997, Latinos constituted an estimated fifty to eighty percent of the meatpacking workforce in the Great Plains states. See Donald Kerwin. The Fight for Dignity: Immigrant Laborers in the Restructured American Economy, IN ALL THINGS, Mar. 2000, http://www.jesuit.org/JCOSIM/in_all_things/march_2000/five. html.
67. See Kerwin, supra note 54. Workers in . . . meatpacking plants suffer from repetitive motion injuries; accidental "cuttings" by co-workers on crowded lines; company doctors and nurses who do not honestly diagnose and treat medical problems; verbal abuse; inhuman line speeds; inadequate breaks; extreme working temperatures; poor benefits; no job security; insufficient housing; paycheck deductions for uniforms and equipment; and underpayment of wages. Id.
68. David Bacon, INS Declares War on Labor, NATION, Oct. 25, 1999, at 18; Immigration: In the Vanguard, ECONOMIST, Oct. 16, 1999, at 31 (characterizing Operation Vanguard as a "gentler new way of doing things").
69. David Bacon, INS Declares War on Labor, NATION, Oct. 25, 1999, at 18; Immigration: In the Vanguard, ECONOMIST, Oct. 16, 1999, at 31 (characterizing Operation Vanguard as a "gentler new way of doing things").
70. Bosniak, supra note 22, at 1041.
71. See Bacon, supra note 56, at 19 ("Operation Vanguard's most serious effect may be the way it undermines the ability of isolated immigrants to organize."). According to a union organizer working to organize the meatpacking workers in Nebraska: The companies already buy people off when they begin to organize, threaten workers with immigration raids, fire people and even bring in workers from the border in a crisis. Operation Vanguard gave the companies a big gift on top of all this - almost all our leaders had to find jobs elsewhere. Id.
72. Louis Uchitelle, I.N.S. Is Looking the Other Way as Illegal Immigrants Fill Jobs, N.Y. TIMES, Mar. 9, 2000, at C1 (citing INS statistics showing that arrests of undocumented workers for deportation dropped to about 8600 in 1999 as compared with 22,000 two years earlier).
73. See, e.g., U.S. GEN. ACCOUNTING OFFICE, GAO/GGD-99-33, ILLEGAL ALIENS: SIGNIFICANT OBSTACLES TO REDUCING UNAUTHORIZED EMPLOYMENT EXIST 16 (1999) ("Relative to other enforcement programs in INS, worksite enforcement has received a relatively small portion of INS' staffing and enforcement budget."). INS worksite program officials indicate that "|e]ven with a two- or three-fold increase in staffing levels, INS would still only be able to investigate a small portion of the estimated number of employers who may have unauthorized aliens and remove only a fraction of the estimated number of unauthorized alien workers." Id. at 18; see also Martin, supra note 47 ("Enforcement is shared by the Justice Department and the Labor Department, but neither have sufficient staff resources to investigate even the most at-risk employers."). According to George Regan, the INS began to "re-deploy Border Patrol resources to border control activities in 1995" resulting in a sharp reduction "of Border Patrol involvement in worksite enforcement from approximately 30 percent of the total worksite program to less than 5 percent." Combating Illegal Immigration: A Progress Report: Hearing Before the Subcomm. on Immigration and Claims, Comm. on the Judiciary, 105th Cong. 2 (1997) (statement of George Regan, Acting Associate Commissioner, Enforcement, Immigration and Naturalization Service).
74. According to Professor Medina, employing undocumented workers carries a forceful moral imperative, and the resulting moral tension surrounding IRCA's employer sanctions creates hesitancy on the part of prosecutors, judges, and society at large. See Medina, supra note 11, at 672.
75. "Wing Lam, the executive director of the Chinese Staff and Workers' Association [of] New York refers to the 'employer sanctions' legislation as 'the slave law.'" PETER KWONG, FORBIDDEN WORKERS: ILLEGAL CHINESE IMMIGRANTS AND AMERICAN LABOR 174 (1997). Explaining why employers turn away workers with lawful status in favor of the undocumented, Lam states that the undocumented are usually young, compliant, and willing to work long hours. But if a worker cannot produce documentation, the boss says he will do him a favor and hire him. Because the boss is doing the worker such a big favor, the worker is expected not to mind being paid less - say, 20-30 percent less. Id.
76. Uchitelle, supra note 59.
77. Bosniak, supra note 22, at 1041. Professor Bosniak predicted that employer sanctions would result in the adoption of workplace practices involving greater domination of undocumented workers. The IRCA has been ineffective in curbing unlawful immigration and has given employers a powerful new tool with which to further exploit low wage workers. See id. at 1006-09.
78. See id. at 1015. The Occupational Safety and Health Act (OSHA) of 1970, Pub. L. No. 91-596, 84 Stat. 1590 (codified as amended in scattered sections of 29 U.S.C.), provides an example of a regulatory regime in which employers are willing to incur fines as a cost of business. In describing the limited enforcement powers under the Act, Jennifer Gordon points out that the Occupational Safety and Health Administration has extremely limited numbers of inspectors. Jennifer Gordon, We Make the Road by Walking: Immigrant Workers, The Workplace Project, and the Struggle for Social Change, 30 HARV. C.R.-C.L. L. REV. 407, 419 (1995). She also notes that the Act sets forth minimal fines, which can be "'abated' if the condition is fixed before a certain date." Id. (citation omitted). Therefore, "employers have no incentive to maintain health and safety standards in the absence of an OSHA order to do so. Paying OSHA fines and penalties is often cheaper for an employer than complying with the law." Id.
79. Bosniak, supra note 22, at 1040. Professor Bosniak explains that over the long run most employers will continue to rely on undocumented workers, and most of those workers will continue to make themselves available for hire. These undocumented workers also face the most oppressive working conditions. For example, they are five times more likely to be paid sub-minimum wages than American-born workers. See IMMIGRATION & NATURALIZATION SERV., U.S. DEP'T OF JUSTICE, REPORT ON THE LEGALIZED ALIEN POPULATION 40 (1992). Not surprisingly, these undocumented workers are disproportionately represented in sweatshops. See U.S. GEN. ACCOUNTING OFFICE, GAO/HRD-88-130BR, SWEATSHOPS IN THE U.S.: OPINIONS ON THEIR EXTENT AND POSSIBLE ENFORCEMENT OPTIONS 34 (1988).
80. As Gordon explains: The real burden of employer sanctions, however, is not borne by employers. In practice, employer sanctions empower employers to terrorize their workers. Frequently, employers in the underground economy ignore sanctions or accept false documents when they hire their workers. Later, when immigrants attempt to organize or otherwise defend their rights, employers suddenly "realize" that they must comply with employer sanctions, and fire anyone who cannot provide valid documents to fill out an I-9 form. If the immigrants press matters any further, employers often threaten to turn them in to the Immigration and Naturalization Service. Thus, these sanctions have enabled employers to maintain an intimidated workforce and cheap labor pool whose members never complain to the authorities about mistreatment. Gordon, supra note 65, at 414 n.27. Furthermore, INS enforcement activity creates conditions which intimidate workers from organizing against exploitative working conditions. If speaking out could mean deportation, workers are less likely to voice their concerns. Even more insidiously, employers frequently call the INS on themselves if they suspect that employees may be preparing to engage in collective action or a union drive, knowing that there will be other eager workers to take their place. Kerwin, supra note 54.
81. The sharp turnaround coincides with business groups' interest in legislative changes allowing for greater employment-based immigration. According to Frank Sharry, Executive Director of the National Immigration Forum, "[This has] the makings of a business-labor compact that could draw new immigration policies for the next decade." Steven Greenhouse, Labor Urges Amnesty for Illegal Immigrants, N. Y. TIMES, Feb. 17, 2000, at A26.
82. Id.
83. Id.
84. See supra note 1.
85. Based on the Sure-Tan decision, the NLRB general counsel instructed that any undocumented worker hired after November 6, 1986 would not be entitled to backpay or reinstatement unless the employee could file a form I-9 with the employer evidencing lawful immigration status. Memorandum from the NLRB General Counsel to Regional Directors et al. (Sept. 1, 1988), 1988 WL 236182.
86. See Bosniak, supra note 22, at 1033 (cautioning that, "[w]hile some courts may continue to recognize the need, as a matter of policy, to extend remedies for violations of employment-related rights to undocumented workers, their ability to act will be constrained by the employer sanctions provisions"); see also Robin Alexander, The Right of Undocumented Workers to Reinstatement and Back Pay in Light of Sure-Tan, Felbro, and the Immigration Reform and Control Act of 1986, 16 N.Y.U. REV. L. & SOC. CHANGE 125 (1987-1988); John F. Barmon, The Seventh Circuit Explains Why There Is No Harm in Exploiting Undocumented Workers: Del Rey Tortilleria, Inc. v. NLRB, 24 U. MIAMI INTERAM. L. REV. 567 (1993); Richard E. Blum, Labor Standards Enforcement and the Realities of Labor Migration: Protecting Undocumented Workers After Sure-Tan, the IRCA, and Patel, 63 N.Y.U. L. REV. 1342 (1988); Daniel R. Fjelstad, Comment, The National Labor Relations Act and Undocumented Workers: Local 512 v. NLRB After the Immigration Reform and Control Act of 1986, 62 WASH. L. REV. 595 (1987); Michelle McAloon, Working but Not "Available to Work": Reconciling the Rights of Undocumented Laborers with the Immigration Reform and Control Act of 1986, 15 CHICANO-LATINO L. REV. 92 (1994); Catherine L. Merino, Compromising Immigration Reform: The Creation of a Vulnerable Subclass, 98 YALE L.J. 409 (1988).
87. Del Rey Tortilleria, Inc. v. NLRB, 976 F.2d 1115, 1121 (7th Cir. 1992). The courts have been equally confounded as to the coverage and remedies available to undocumented workers under the other national employment protection statutes. For example, in Patel v. Quality Inn South, 846 F.2d 700 (11th Cir. 1988), the court relied upon Sure-Tan to hold that undocumented workers were entitled to coverage under the Fair Labor Standards Act, notwithstanding the IRCA. See id. at 703. With regard to remedies, the Patel court went beyond Sure-Tan by awarding backpay to undocumented workers who had left the country. Whereas the Court in Sure-Tan held that the undocumented workers (who had been deported) were unavailable for work and therefore not entitled to backpay under the NLRA, the court in Patel viewed the case as involving a claim for backpay for hours actually worked. Id. at 705-06. The court concluded that awarding backpay to undocumented workers was entirely consistent with the INA, including the IRCA, because it decreases the economic incentive for employers to hire undocumented workers. Id. at 704. Similarly, in a case involving an employer reporting its undocumented worker to the INS in retaliation for her bringing an action before the Department of Labor for unpaid wages, the court held that the anti-retaliation provisions of the FLSA apply equally to undocumented workers. Contreras v. Corinthian Vigor Ins. Brokerage, Inc., 25 F. Supp. 2d 1053, 1056 (N.D. Cal. 1998). In EEOC v. Tortilleria "La Mejor," 758 F. Supp. 585 (E.D. Cal. 1991), the court was faced for the first time with interpreting whether Title VII's employment discrimination protections extended to undocumented workers in light of the IRCA. Relying upon Sure-Tan, Patel, and the plain meaning of the statute at issue, the court held that undocumented workers were included within the term "employee" for Title VII purposes as well. However, as discussed supra note 27 and infra note 94, a divided Fourth Circuit has recently held that the IRCA statutorily precludes coverage of undocumented workers under Title VII.
88. 134 F.3d 50 (2d Cir. 1997).
89. 124 F.3d 381 (2d Cir. 1997).
90. 320 N.L.R.B. 408, 415 (1995). For prior policy, see Memorandum from the NLRB General Counsel to Regional Directors et al., supra note 72. After A.P.R.A. Fuel, the general counsel of the NLRB issued new guidelines. See Memorandum from Fred Feinstein, General Counsel, NLRB, to Regional Directors et al. (Dec. 4, 1998), http://www.lawmemo. com/emp/nlrb/GC98-15.htm. Pursuant to the new memorandum, "[r]egions should seek an unconditional reinstatement order absent an affirmative showing by the respondent that a discriminatee is unauthorized to work in this country." Id.
91. A.P.R.A. Fuel, 320 N.L.R.B. at 408; see also S. S.S. Co. v. NLRB, 316 U.S. 31, 47 (1942) (noting that when a case involves the intersection of two federal statutes, the Board should harmonize the two laws to "accommodat[e] . . . one statutory scheme to another").
92. A.P.R.A. Fuel, 320 N.L.R.B. at 409 ("The [company] hired [both workers] after each of them explicitly informed it that he was not eligible for lawful employment in the United States based on immigration status"). In Hoffman Plastic Compounds, Inc. v. NLRB, 208 F.3d 229 (D.C. Cir. 2000), aff'd, 237 F.3d 639 (D.C. Cir. 2001) (en banc), the undocumented worker used another's birth certificate to obtain employment. Id. at 232. The employer claimed that it had no knowledge of the worker's undocumented status until he admitted it at a compliance proceeding held to establish the proper method for computing backpay. See Hoffman Plastic Compounds, Inc., 326 N.L.R.B. 1060, 1062 (1998). The Board afforded the employer the benefit of the after-acquired evidence doctrine and terminated the backpay award as of the date the employer learned that the worker misrepresented his immigration status. Id. The circuit court upheld the limited backpay award pursuant to A.P.R.A. Fuel. Hoffman Plastic Compounds, Inc., 208 F.3d at 242; see also infra note 98.
93. See A.P.R.A. Fuel Oil Buyers Group, Inc., 309 N.L.R.B. 480, 495-96 (1992), aff'd, 28 F.3d 103 (2d Cir. 1994). Both discharges occurred approximately one month after the employer learned of its employees' union activities and in an atmosphere of "pervasive" and "flagrant" unfair labor practices. Id. at 481 (citation omitted).
94. A.P.R.A. Fuel. 320 N.L.R.B. at 409.
95. Id. at 410. The discharged undocumented workers would then continue to receive backpay until the applicant referred by the union was hired. Id. The general counsel analogized ordering the employer to hire an applicant referred by the union to the "affirmative race-conscious relief ordered in cases of patterns of discrimination found under Title VII of the Civil Rights Act of 1964." Id. at 409.
96. Id. at 410.
97. Id.
98. Id. at 408.
99. Id. at 411.
100. Id.
101. See id. at 411-13, 417.
102. Id. at 417.
103. Id. at 408. The NLRB's decision was premised on the fact that the undocumented immigrants were not doing anything illegal by remaining in the country, as opposed to the undocumented workers in Sure-Tan who had left the United States and would have had to violate the law to re-enter. See Id. at 415. While a full discussion of more recent enactments is beyond the scope of this Article, it could be argued that this distinction is no longer valid in light of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996, Pub. L. No. 104-208, 110 Stat. 3009 (codified as amended in scattered sections of 8 U.S.C. and 18 U.S.C.). See INA § 212(a)(6)(A), 8 U.S.C. § 1182(a)(6)(A) (1994 & Supp. V 1999) (creating a new ground for inadmissibility for aliens present without admission or parole). Arguably, for undocumented workers who unlawfully enter the United States after April 1997 (the effective date of this provision), their mere presence in the country is an ongoing violation of the immigration laws.
104. NLRB v. A.P.R.A. Fuel Oil Buyers Group, Inc., 134 F.3d 50, 52 (2d Cir. 1997).
105. Id. at 55. "Congress sought to reduce the availability of jobs for undocumented workers without adversely affecting working conditions within those jobs." Id. The court relied upon the House Judiciary Committee Report on the IRCA, which specifically states that IRCA was not intended to narrow the employee definition under the NLRA or to "'limit the powers' of the Board 'to remedy unfair practices committed against undocumented employees.'" Id. at 56 (citations omitted).
106. Id. at 57.
107. A.P.R.A. Fuel stands in sharp contrast to the Fourth Circuit's interpretation of the IRCA's impact on undocumented workers' rights under national employment protection statutes. In Egbuna v. Time-Life Libraries, Inc., 153 F.3d 184 (4th Cir. 1998) (en banc), cert. denied, 525 U.S. 1142 (1999), a sharply divided Fourth Circuit interpreted the IRCA as "statutorily disqualif[ying] any undocumented alien from being employed as a matter of law." Id. at 187. In response to the undocumented worker's allegation that the company unlawfully refused to rehire him in retaliation for his involvement in another worker's discrimination suit, the majority held that his undocumented status rendered him ineligible for the anti-retaliation protections of Title VII. See id. at 187-88. According to the court, "When the applicant is an alien, being 'qualified' for the position is not determined by the applicant's capacity to perform the job - rather, it is determined by whether the applicant was an alien authorized for employment in the United States at the time in question." Id. at 187. Judge Ervin, joined by three fellow dissenters, noted that the majority's interpretation of Title VII's requirement that an applicant be "qualified for work" would extinguish an undocumented alien's rights under the Age Discrimination in Employment Act and the Americans with Disabilities Act. Id. at 189 (Ervin, J., dissenting). He went on to note that the majority's interpretation of the IRCA would preclude undocumented workers from FLSA or NLRA coverage as well, a proposition at odds with congressional intent and case law in other circuits interpreting the intersection of IRCA and federal labor laws. Id. However, on October 26, 1999, the Equal Employment Opportunity Commission ("EEOC"), the agency responsible for administering Title VII, rejected the Egbuna court's reasoning and instead relied upon A.P.R.A. Fuel to guarantee remedies to aggrieved undocumented workers under Title VII. According to the EEOC, "where an undocumented worker is found to have been a victim of employment discrimination, remedy awards can and should fulfill the goals of the employment discrimination statutes without undermining the purposes of the immigration laws." EEOC, Notice No. 915.002, Enforcement Guidance on Remedies Available to Undocumented Workers Under Federal Employment Discrimination Laws (1999), http://www.eeoc.gov/docs/undoc.html. The Supreme Court has declined to review Egbuna and has instead allowed the confusion in the circuits over the interplay of the IRCA and labor and employment laws to flourish. For example, in NLRB v. Kolkka, 170 F.3d 937, 940 (9th Cir. 1999), the Ninth Circuit ruled that the participation of undocumented workers in union representation was valid, even if their employee status may have been subject to challenge under the IRCA. However, the Second Circuit recently held that an employer's shielding of an undocumented worker constituted "harboring an illegal alien" as prohibited by section 274(a)(1)(A)(iii) of the INA. See United States v. Kim, 193 F.3d 567, 569 (2d Cir. 1999).
108. As Jennifer Gordon has observed, it is cheaper for a company to fire union supporters and be found guilty of committing unfair labor practices under the NLRA than it is to recognize a union. The worst case scenario for the employer is that she is found guilty and has to pay back wages and reinstate the union organizer. However, due to the lengthy nature of NLRB proceedings, it is likely that the union will have been defeated long before the worker is back on the job. See Gordon, supra note 65, at 424. In the words of Paul Weiler, the limited backpay awards available to illegally fired workers are "hardly a meaningful deterrent to an employer determined to keep a union out of its plant by fair means or foul." PAUL C. WEILER, GOVERNING THE WORKPLACE: THE FUTURE OF LABOR AND EMPLOYMENT LAW 234 (1990). In critiquing the backpay remedy, Jamin Raskin comments: "It is difficult to imagine a sweeter deal from the management perspective: in return for paying an employee's regular salary, it breaks up the union campaign, ejects the pro-union nuisance, and sends the proper message about labor organizing to the work force." Jamin B. Raskin, Reviving the Democratic Vision of Labor Law, 42 HASTINGS L.J. 1067, 1079 (1991) (reviewing WEILER, supra).
109. See Ontiveros, supra note 27, at 616. According to Ontiveros, the courts' focus on the worker's immigration status (rather than on the employer's action) is both analytically incorrect and unduly prejudicial. As a matter of law, the employer's discriminatory conduct cannot be transformed by the worker's immigration status. Furthermore, the focus on the immigration status of the worker reinforces notions of "otherness" thereby devaluing the harm done to her. Id.
110. After-acquired evidence means evidence relating to an employee's bad acts that would have resulted in that employee's termination if the information had been known at the time of the firing. See McKennon v. Nashville Banner Publ'g Co., 513 U.S. 352, 356-63 (1995). In McKennon, the Supreme Court unanimously held that after-acquired evidence of wrongdoing may be used to limit an employee's recovery of backpay from the date of the unlawful discharge to the date that the information is uncovered. See id. at 362. In order for an employer to utilize the after-acquired evidence doctrine, "it must first establish that the [employee's] wrongdoing was of such severity that the employee in fact would have been terminated on those grounds alone if the employer had known of it at the time of the discharge." Id. at 362-63. In Sheehan v. Donlen Corp., 173 F.3d 1039 (7th Cir. 1999), the court held that the inquiry focuses on the employer's actual employment practices, not just the standards established in its employee manuals, and reflects a recognition that employers often say they will discharge employees for certain misconduct while in practice they do not. Proving that the same decision would have been justified . . . is not the same as proving that the same decision would have been made. Id. at 1048 (citations omitted).
111. See, for example, the dicta in A.P.R.A. Fuel Oil Buyers Group, Inc., 320 N.L.R.B. 408, 416 (1995), and the holding in Hoffman Plastic Compounds, Inc. v. NLRB, 208 F.3d 229 (D.C. Cir. 2000), aff'd, 237 F.3d 639 (D.C. Cir. 2001) (en banc), the latter affirming the NLRB's limited award of backpay only for "the period beginning with [the employee's] unlawful termination and ending on the date [the employer] learned of his undocumented status." Id. at 242. While the Hoffman court registered its "disagreement with [the employer's] characterization of this case as a dispute between 'an innocent employer' and an employee who has no legal right to be in this country and who obtained his job through fraud," id. at 233, it nevertheless affirmed the Board's application of the after-acquired evidence rule. Id. at 243. Employers are rarely sanctioned under the IRCA because it is difficult to prove that they "knowingly" employ undocumented workers. A feigned lack of knowledge about an undocumented workforce insulates employers from IRCA penalties, and also provides an after-acquired evidence defense to limit remedies for violating labor and employment protection statutes. See, e.g., infra note 241. In Robinson v. Shell Oil, 519 U.S. 337 (1997), the Supreme Court cautioned against construing statutory antidiscrimination statutes in such a way as to vitiate protection and found that narrowly defining the term "employees" under Title VII to exclude former employees would create a "perverse incentive for employers to fire employees who might bring Title VII claims." Id. at 345-46. By the same logic, reconciling the labor and immigration statutes in such a way as to severely limit remedies creates a perverse incentive for employers to look the other way when hiring undocumented workers because it results in immunity from both the immigration and labor laws.
112. Applying a standard of "legal" availability to determine whether undocumented workers should be entitled to remedies for violations of their workplace rights ignores the reality of their "actual" presence in the workforce. This approach reminds us once again that fictions are "more pervasive, insidious and entrenched" in immigration law than in other areas of the law, and are used here to bridge the gap between ideology and reality. Wani, supra note 2, at 53; cf. Granados v. Windson Dev. Corp., 509 S.E.2d 290 (Va. 1999) (ignoring the reality of an employee's work-related injury, and finding that an undocumented worker injured on the job cannot receive workers" compensation benefits because any contract for hire entered into by an undocumented worker is void and unenforceable).
113. This is essentially the position adopted by the NLRB general counsel after A.P.R.A. Fuel. See Memorandum from Fred Feinstein to Regional Directors et al., supra note 77 ("Questions concerning reinstatement are only appropriately raised in a compliance proceeding.").
114. This was one of the remedies suggested by the ILGWU (now the Union of Needletrade, Industrial and Textile Employees ("UNITE")) in A.P.R.A. Fuel. See Brief Amicus Curiae of International Ladies' Garment Workers' Union at 26, 35-41. A.P.R.A. Fuel Oil Buyers Group, Inc., 320 N.L.R.B. 408 (1995) (No. 29-CA-15517) (on file with author). However, the idea of using backpay as a substitute remedy might be difficult to accord with the Supreme Court's decision in Sure-Tan, discussed supra Part II. In Sure-Tan, the Court struck down as speculative a backpay remedy that the circuit court had formulated to assure that the undocumented discriminatees who had left the country would receive some compensation. Furthermore, even in the case of documented workers, the backpay award is a small deterrent to unscrupulous employers. See supra note 95 and accompanying text. For that reason, many commentators have called for the reform of the NLRA to include stricter penalties. A common proposal is that the NLRA be amended to provide for a multiple damage award, such as those used in fair labor standards and antitrust law. See, e.g., Paul Weiler, Promises to Keep: Securing Workers' Rights to Self-Organization Under the NLRA, 96 HARV. L. REV. 1769, 1790 (1983) (noting also that such measures have never fared well before Congress because of the entrenched assumption that NLRB remedies should be reparative rather than punitive).
115. As advocated by the ILGWU, various factors could be taken into account in assessing whether the employer would likely have discharged the undocumented worker for nondiscriminatory reasons: for example, the average length of a worker's employment at the company, or any action by the employer to require I-9 forms for all employees followed by the discharge of any who failed to provide the required immigration documentation along with the I-9 form. See Brief Amicus Curiae of International Ladies' Garment Workers' Union at 26, 35-41, A.P.R.A. Fuel (No. 29-CA-15517).
116. For example, in cases involving illegally discharged drivers who lacked valid licenses, the NLRB has ordered employers to provide backpay until the workers could be legally reinstated as drivers (upon obtaining licenses) or transferred to substantially equivalent non-driving positions (if the employees could not obtain licenses), or until the drivers obtain substantially equivalent employment elsewhere. De Jana Indus., Inc., 305 N.L.R.B. 845 (1991); Future Ambulette, Inc., 293 N.L.R.B. 884 (1989), enforced as modified, 903 F.2d 140 (2d Cir. 1990).
117. Fairview Nursing Home, 202 N.L.R.B. 318, 325 n.36 (1973), enforced, 486 F.2d 1400 (5th Cir. 1973), overruled on other grounds, Parker-Robb Chevrolet, Inc., 262 N.L.R.B. 402 (1982).
118. For an example of an instance in which the court ensured that an unscrupulous employer was not able to use the IRCA to shield itself from labor law remedies, see Bertelsen v. Agricultural Labor Relations Board, 29 Cal. Rptr. 2d 204 (Ct. App. 1994). The Bertelsen court upheld the Agricultural Labor Relations Board's ("ALRB") order of reinstatement and backpay to undocumented farmworkers who had been discharged in retaliation for engaging in protected concerted activity. Id. at 205. In holding that the state was not preempted by the IRCA from providing such remedies to workers regardless of their immigration status, the court examined the issue of availability for work in the context of undocumented workers. The court relied upon a post-Sure-Tan ALRB decision that had "concluded that the Legislature intended that undocumented agricultural workers [in California] were to be protected 'agricultural employees' under the [Agriculture Labor Relations Act]." Id. at 208 (citations omitted). The ALRB also "concluded that as a matter of legislative intent there was no difference in remedial relief based on a worker's immigration status." Id. (citations omitted).
119. Montero v. INS, 124 F.3d 381 (2d Cir. 1997); cf. Velasquez-Tabir v. INS, 127 F.3d 456 (5th Cir. 1997) (holding that evidence obtained as a result of an unfair labor practice is admissible in a civil proceeding to assess a fine against the undocumented immigrant for working without INS authorization).
120. Order Further Consolidating Cases, Consolidated Amended Complaint and Notice of Hearing at 7-9, STC Knitting Mills, Inc. (No. 29-CA-16950) (unpublished NLRB order filed Jan. 15, 1993) (on file with author).
121. See Sure-Tan, Inc., v. NLRB, 467 U.S. 883, 895-96 (1984).
122. Montero, 124 F.3d at 384.
123. Montero argued that the Board of Immigration Appeals' decision was contrary to section 274A of the INA, which Congress declared must not "be used to undermine or diminish in any way labor protections in existing law." Id. (emphasis added) (quoting H.R. REP. NO. 99-682, pt. 1, at 58 (1986), reprinted in 1986 U.S.C.C.A.N. 5649, 5662).
124. Id.
125. See id.
126. See id. at 385.
127. Montero relied upon the Supreme Court's language in INS v. Lopez-Mendoza, 468 U.S. 1032 (1984), suggesting that the exclusionary rule could apply in deportation proceedings if there were "egregious violations of Fourth Amendment or other liberties that might transgress notions of fundamental fairness and undermine the probative value of the evidence obtained." Id. at 1050-51; see also infra notes 126-141. While leaving open the question of whether an egregious violation of the Fourth Amendment would trigger the exclusionary rule, the court of appeals in Montero held that the exclusionary rule would not apply to a violation of First Amendment rights. Montero, 124 F.3d at 386. The Montero court interpreted Lopez-Mendoza to mean that, beyond violations of the Fourth Amendment, the exclusionary rule applies, if at all, to deprivations that affect the fairness or reliability of the deportation proceeding. See id.
128. See Montero, 124 F.3d at 387.
129. As stated by the court, "Whether or not an undocumented alien has been the victim of unfair labor practices, such an alien has no entitlement to be in the United States." Id. at 385.
130. Id.
131. Id.
132. See Lopez-Mendoza, 468 U.S. at 1038-39.
133. See, e.g., Scheidemann v. INS, 83 F.3d 1517, 1531 (3d Cir. 1996) (Sarokin, J., concurring) ("[N]ow is the time to wipe the slate clean and admit to the long evident reality that deportation is punishment."); Wani, supra note 2, at 103 ("The civil/criminal distinction is a meaningless legal fiction that should not be used as the determinant of a crucial constitutional protection."); Peter H. Schuck, The Transformation of Immigration Law, 84 COLUM. L. REV. 1 (1984) (discussing the legal fiction that deportation is not punishment); see also Nancy Morawetz, Rethinking Retroactive Deportation Laws and the Due Process Clause, 73 N.Y.U. L. REV. 97 (1998). The reality that deportation is often the harshest punishment of all has been articulated in dissenting opinions over the years. See, e.g., Harisiades v. Shaughnessy, 342 U.S. 580, 598 (1952) (Douglas, J., dissenting); Fong Yue Ting v. United States, 149 U.S. 698, 732 (1893) (Brewer, J., dissenting) (describing deportation as banishment).
134. See, e.g., Scheidemann v. INS, 83 F.3d 1517, 1531 (3d Cir. 1996) (Sarokin, J., concurring) ("[N]ow is the time to wipe the slate clean and admit to the long evident reality that deportation is punishment."); Wani, supra note 2, at 103 ("The civil/criminal distinction is a meaningless legal fiction that should not be used as the determinant of a crucial constitutional protection."); Peter H. Schuck, The Transformation of Immigration Law, 84 COLUM. L. REV. 1 (1984) (discussing the legal fiction that deportation is not punishment); see also Nancy Morawetz, Rethinking Retroactive Deportation Laws and the Due Process Clause, 73 N.Y.U. L. REV. 97 (1998). The reality that deportation is often the harshest punishment of all has been articulated in dissenting opinions over the years. See, e.g., Harisiades v. Shaughnessy, 342 U.S. 580, 598 (1952) (Douglas, J., dissenting); Fong Yue Ting v. United States, 149 U.S. 698, 732 (1893) (Brewer, J., dissenting) (describing deportation as banishment).
135. See, e.g., Lopez-Mendoza, 468 U.S. at 1038-39; Harisiades, 342 U.S. at 594 (deportation is a civil, not a criminal punishment); Fong Yue Ting, 149 U.S. at 730 (deportation is not banishment but merely method for enforcing immigration laws).
136. See Lopez-Mendoza, 468 U.S. at 1039.
137. Id. at 1046. The Lopez-Mendoza Court reasoned: "[N]o one would argue that the exclusionary rule should be invoked to prevent an agency from ordering corrective action at a leaking hazardous waste dump . . . or to compel police to return contraband explosives or drugs to their owner if the contraband had been unlawfully seized." Id. Bill Ong Hing explains that this demonization and dehumanization of immigrants silences them, since "dehumanization allows the powers-that-be to categorize the immigrant at will, allowing them to ignore the idealism, the goals, the aspirations, the dreams of the immigrant, the images of the Statue of Liberty." Bill Ong Hing. The Immigrant as Criminal: Punishing Dreamers, 9 HASTINGS WOMEN'S L.J. 79, 83 (1998).
138. The executive branch has been accorded unusual deference in immigration matters because of the plenary power doctrine and embedded notions of the primacy of sovereignty. See, e.g., Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 210 (1953) (holding that "the power to expel or exclude aliens [is] a fundamental sovereign attribute exercised by the Government's political departments largely immune from judicial control"); Fong Yue Ting, 149 U.S. at 711-12 (finding that the power to expel foreigners is also a power affecting international relations and extending plenary power doctrine to deportation context); Chae Chan Ping v. United States (The Chinese Exclusion Case), 130 U.S. 581 (1889). The power of exclusion of foreigners being an incident of sovereignty belonging -to the government of the United States, as a part of those sovereign powers delegated by the Constitution, the right to its exercise at any time when, in the judgment of the government, the interests of the country require it, cannot be granted away or restrained on behalf of anyone. Id. at 609. But cf. Rosales-Garcia v. Holland, 238 F.3d 704, 719-21 (6th Cir. 2001) (contextualizing the political climate in which the Supreme Court decided Mezei and debunking the antiquated notion that that excludable aliens have no rights under the Fifth Amendment). For comprehensive discussion and criticism of the plenary power doctrine, see Stephen H. Legomsky, Immigration Law and the Principle of Plenary Congressional Power, 1984 SUP. CT. REV. 255; and Hiroshi Motomura, Immigration Law After a Century of Plenary Power: Phantom Constitutional Norms and Statutory Interpretation, 100 YALE L.J. 545 1990).
139. The executive branch has been accorded unusual deference in immigration matters because of the plenary power doctrine and embedded notions of the primacy of sovereignty. See, e.g., Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 210 (1953) (holding that "the power to expel or exclude aliens [is] a fundamental sovereign attribute exercised by the Government's political departments largely immune from judicial control"); Fong Yue Ting, 149 U.S. at 711-12 (finding that the power to expel foreigners is also a power affecting international relations and extending plenary power doctrine to deportation context); Chae Chan Ping v. United States (The Chinese Exclusion Case), 130 U.S. 581 (1889). The power of exclusion of foreigners being an incident of sovereignty belonging -to the government of the United States, as a part of those sovereign powers delegated by the Constitution, the right to its exercise at any time when, in the judgment of the government, the interests of the country require it, cannot be granted away or restrained on behalf of anyone. Id. at 609. But cf. Rosales-Garcia v. Holland, 238 F.3d 704, 719-21 (6th Cir. 2001) (contextualizing the political climate in which the Supreme Court decided Mezei and debunking the antiquated notion that that excludable aliens have no rights under the Fifth Amendment). For comprehensive discussion and criticism of the plenary power doctrine, see Stephen H. Legomsky, Immigration Law and the Principle of Plenary Congressional Power, 1984 SUP. CT. REV. 255; and Hiroshi Motomura, Immigration Law After a Century of Plenary Power: Phantom Constitutional Norms and Statutory Interpretation, 100 YALE L.J. 545 1990).
140. For example, immigrants have no statutory right to free counsel in removal proceedings and extremely limited protection under the exclusionary rule. See INA § 240(b)(4)(A), 8 U.S.C. § 1229a(b)(4)(A) (Supp. V 1999) ("[T]he alien shall have the privilege of being represented, at no expense to the Government."); INA § 292, 8 U.S.C. § 1362 ("In any removal proceedings . . . , the person concerned shall have the privilege of being represented (at no expense to the Government)."); see also Lopez-Mendoza, 468 U.S. at 1038 ("Consistent with the civil nature of the proceeding, various protections that apply in the context of a criminal trial do not apply in a deportation hearing."); supra note 121. For a discussion of the tensions created by the INS's use of criminal investigatory techniques in "civil" deportation matters, see Lenni B. Benson, By Hook or by Crook: Exploring the Legality of an INS Sting Operation, 31 SAN DIEGO L. REV. 813 (1994).
141. Lopez-Mendoza, 468 U.S. at 1050-51; see also 28 C.F.R. § 68.40(b) (2001) ("All relevant material and reliable evidence is admissible, but may be excluded if its probative value is substantially outweighed by unfair prejudice or confusion of the issues.").
142. See supra text accompanying note 120.
143. Medina, supra note 11, at 676. Professor Medina argues that the United States has increasingly looked to criminal law to address the dilemma of undocumented immigration. Most notably, the IIRIRA created a host of new criminal offenses for aliens who flee from an immigration checkpoint "in excess of the legal speed limit," 18 U.S.C. § 758 (Supp. V 1999); knowingly make false claims to citizenship to obtain a benefit or employment in the United States, id. § 1015(e); or vote in federal elections, id. § 611. Other sections of the IIRIRA enhance criminal penalties for alien smuggling and for fraudulent use of documents. See generally Robert Pauw, A New Look at Deportation as Punishment: Why at Least Some of the Constitution's Criminal Procedure Protections Must Apply, 52 ADMIN. L. REV. 305 (2000). Pauw argues that in some cases, the statutory framework is inherently penal. For example, "a person convicted of an 'aggravated felony' is deportable" without any possibility of a waiver, even in the most compelling of circumstances. Id. at 338. In addition to the efforts to criminalize immigration law, the INS is also increasingly collaborating with the police and other law enforcement agencies in order to carry out its mandate. Pursuant to section 133 of the IIRIRA, state and local police and sheriffs' departments may be deputized to perform immigration law enforcement. See INA § 287(g), 8 U.S.C. § 1357(g) (Supp. V 1999). In analyzing INS sting operations, Professor Benson argues that the INS's use of undercover actions amounts to the use of criminal enforcement techniques in civil proceedings, thereby rendering the deportation proceeding a hybrid, neither civil nor criminal. See Benson, supra note 125, at 848. Challenging the characterization of deportation proceedings arising from sting operations as civil, Professor Benson argues for greater procedural due process protections. Id.
144. See Pauw, supra note 128, at 333 (rejecting the "all or nothing" approach and arguing for additional constitutional safeguards in "quasi-criminal" cases - that is, civil proceedings in which punishment is imposed). According to Pauw, even if there is a viable sense in which deportation can be regarded as non-punitive, that does not mean that deportation is always non-punitive. As the recent amendments to our immigration laws make clear, there are a variety of circumstances in which deportation must be regarded as punishment because the sanction cannot be justified in terms of its remedial purpose. Id. at 332.
145. See, e.g., Smith Steel Casting Co. v. Brock, 800 F.2d 1329 (5th Cir. 1986). The Smith court analyzed Lopez-Mendoza in the context of Occupational Safety and Health Administration proceedings and held that the exclusionary rule does not apply in proceedings conducted for the purpose of correcting violations of occupational safety and health standards. However, the court held that the exclusionary rule does apply where the object of the proceedings is to punish the employer for past violations of OSHA regulations. See id. at 1334.
146. Pauw, for example, notes that there is a remedial purpose in protecting the integrity of the immigration system: "Thus those individuals without proper documents . . . can be . . . removed for remedial purposes, even if they are otherwise desirable as residents." Pauw, supra note 128, at 332-33. Pauw further argues that "[i]n some cases incapacitation may be taken as a legitimate remedial measure to protect other members of the community." Id.
147. 428 U.S. 433 (1976) (examining the applicability of the exclusionary rule in federal civil tax assessment proceedings following the unlawful seizure of evidence by state officials).
148. See INS v. Lopez-Mendoza, 468 U.S. 1032, 1041 (1984).
149. Over 97.5% of "illegal aliens" arrested by the INS agree to depart voluntarily without a formal hearing. See id. at 1044. Therefore, applying the exclusionary rule would not deter unlawful INS conduct because the arresting INS agent would know that, in all likelihood, the alien would not have a hearing or contest the INS conduct. See id. Similarly, because of the lack of constitutional protections in deportation proceedings, the Lopez-Mendoza Court found that the INS could establish alienage easily without the suppressed evidence: given the civil nature of the deportation proceeding, an adverse inference could be drawn from the alien's silence if he or she were questioned as to his immigration status and refused to answer. Id. at 1043.
150. See id. at 1044; see also Velasquez-Tabir v. INS, 127 F.3d 456 (5th Cir. 1997) (applying the balancing test articulated in Lopez-Mendoza). The Velasquez-Tabir court found little deterrence value in excluding evidence provided in violation of the NLRA because an unfair labor practice committed by the employer could be sanctioned pursuant to the NLRA. See id. at 460. The traditional "sanctions" available to an aggrieved worker under the NLRA are backpay and/or reinstatement. See supra notes 95-98. However, when the aggrieved worker is undocumented, available remedies are extremely limited, and thus sanctions under the NLRA provide little deterrence to the unscrupulous employer. See supra notes 77-98.
151. Lopez-Mendoza. 468 U.S. at 1046.
152. Id. at 1047 ("The constable's blunder may allow the criminal to go free, but we have never suggested that it allows the criminal to continue in the commission of an ongoing crime. When the crime in question involves unlawful presence in this country, the criminal . . . should not go free within our borders.").
153. Id. at 1048-49 (arguing that the INS needs a streamlined process for deportation since the Agency apprehends over one million deportable aliens every year).
154. Lopez-Mendoza's arrest (and admission of unlawful presence) was the result of a warrantless, non-consensual search of his place of employment by the INS. The other petitioner in the case (Sandoval-Sanchez) was arrested as a result of an INS workplace raid with employer consent, and subsequent detention of workers thought to be undocumented. Id. at 1035-38.
155. A full discussion of the applicability of the exclusionary rule to deportation proceedings is beyond the scope of this Article. The Montero case, however, presents an even stronger argument for the exclusionary rule than existed in the Lopez-Mendoza case itself. Montero differed from Lopez-Mendoza in two essential aspects. First, whereas Lopez-Mendoza involved solely the immigration statute, Montero required the court to reconcile two competing statutes. As the Supreme Court explained in Southern Steamship Co. v. NLRB, 316 U.S. 31 (1942), when a case involving the intersection of two federal statutes arises, the adjudicator must "accommodat[e] . . . one statutory scheme to [the] other." Id. at 47. Second, the Lopez-Mendoza Court found it significant that the INS had its own system in place for deterring Fourth Amendment violations. In contrast, the NLRA - the second statute at issue in Montero - has no provisions for adequately deterring unlawful conduct by employers. The remedies available for violations of the NLRA do not sufficiently deter the unscrupulous employer. See supra notes 94-98. But cf. Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 904 (1984) ("Any perceived deficiencies in the NLRA's existing remedial arsenal can only be addressed by congressional action."); Montero v. INS, 124 F.3d 381, 385 (2d Cir. 1997) ("To the extent that these sanctions are insufficiently severe to deter such conduct, that concern must be addressed to the Congress and not the courts.").
156. For example, the Ninth Circuit has developed an "egregious violation" exception to the general rule that the exclusionary rule does not apply in deportation proceedings. See, e.g., Orhorhaghe v. INS, 38 F.3d 488, 501 (9th Cir. 1994) (holding that searches and seizures "based on the unfounded and unwarranted assumption that people with certain foreign-sounding names are likely to be illegal aliens, constituted egregious Fourth Amendment violations"); Gonzales-Rivera v. INS, 22 F.3d 1441 (9th Cir. 1993) (holding that searches and seizures based solely on Latino appearance constitute egregious violation of Fourth Amendment); Arguelles-Vasquez v. INS, 786 F.2d 1433, 1435 (9th Cir. 1986) (holding that a seizure based solely on Latino appearance constitutes an "egregious violation" of the Fourth Amendment, warranting suppression under the exclusionary rule), vacated as moot, 844 F.2d 700 (9th Cir. 1988). For criticism of the Ninth Circuit's approach, see, for example, Judy C. Wong, Egregious Fourth Amendment Violations and the Use of the Exclusionary Rule in Deportation Hearings: The Need for Substantive Equal Protection Rights for Undocumented Immigrants, 28 COLUM. HUM. RTS. L. REV. 431, 434 (1997) (arguing that the Ninth Circuit's egregious violation exception is based on a tenuous reading of the dictum in Lopez-Mendoza and arguing instead for recognition of a substantive right to be free from racial discrimination for all persons).
157. Paul Weiler explains that the real purpose of unlawful discharges is to break the momentum of the union's organizing campaign. "By the time the discharged employee has been reinstated, much of the union's support may have melted away, and the election may thus have been lost." Weiler, supra note 101, at 1788.
158. Professor Bosniak notes that "[w]hile [the undocumented] formally are afforded the minimum rights of personhood under the law, they lie entirely outside the law's protections for many purposes, and they live subject to the fear of deportation at virtually all times." Linda S. Bosniak, Opposing Prop. 187: Undocumented Immigrants and the National Imagination, 28 CONN. L. REV. 555, 576-77 (1996) (citations omitted). She concludes, "It would be hard to find a group of people who live further at the margins, or closer to 'the bottom,' than the undocumented." Id. at 577.
159. See Sure-Tan, 467 U.S. at 883.
160. Perhaps as a result of Montero, the INS dramatically revised its internal policies for handling INS investigations in the midst of a labor dispute. See infra notes 165-168 and accompanying text.
161. Montero v. INS, 124 F.3d 381, 386 (2d Cir. 1997).
162. Id. at 385.
163. See id. at 386. While strong policy arguments exist for excluding unlawfully provided evidence in deportation proceedings, a successful exclusionary rule defense would require a showing that the employer's unlawful actions could be imputed to the INS. An unlawful search or seizure by a private party does not violate the Fourth Amendment. Walter v. United States, 447 U.S. 649 (1980). However, Fourth Amendment protections do attach when a private party acts as an "instrument or agent" of the state in effecting a search or seizure. Coolidge v. New Hampshire, 403 U.S. 443, 487 (1971). The Ninth Circuit has held that the government must be involved "either directly as a participant or indirectly as an encourager" of the private citizen's actions before the private actor can be deemed an instrument of the state. United States v. Gumerlock, 590 F.2d 794, 800 (9th Cir. 1979) (en banc). "The requisite degree of governmental participation involves some degree of knowledge and acquiescence in the search." United States v. Walther, 652 F.2d 788, 792 (9th Cir. 1981) (citing United States v. Sherwin, 539 F.2d 1, 6 (9th Cir. 1976)). "[T]he critical factors in the 'instrument or agent' analysis are: (1) the government's knowledge and acquiescence, and (2) the intent of the party performing the search." Id. In Walther, the Ninth Circuit found that a situation in which federal agents stood guard while a hotel owner searched a guest's room was sufficient to qualify as government action. In Montero, determining the level of governmental knowledge and acquiescence required the court to consider the facts in the context of the union organizing drive. As Montero argued, the only reason for an employer to contact the INS to report its own workers would be to circumvent labor laws. See Montero, 124 F.3d at 385. The employer then must have intended to help the federal authorities enforce the immigration laws, since it is only through governmental enforcement of immigration laws that the employer could serve its own purposes. See id.
164. Cf. Montero, 124 F.3d at 384. However, even if the court had found that the INS played a role in violating the statute, it is not clear how that would have impacted the decision. For example, in Westover v. Reno, 202 F.3d 475 (1st Cir. 2000), the court found that an INS agent's actions in arresting the petitioner without obtaining a warrant "appear[ed] from the record to be in direct violation of the [INA]." Id. at 480. Nevertheless, the court found that a "mere statutory argument" cannot invalidate removal proceedings. Id. "Certain actions by the INS in this case raise concerns, but in the end those actions are not relevant to the legitimate basis for the removal order." Id. at 477. In Westover, the petitioner was seeking to have the removal proceedings terminated because of unlawful INS conduct. Because the BIA did not rely upon evidence acquired at the time of the statutorily invalid arrest, the First Circuit did not have to decide the "more difficult question" as to whether unlawfully obtained evidence should be suppressed from a removal proceeding. Id. at 479.
165. In Velasquez-Tabir v. INS, 127 F.3d 456 (5th Cir. 1997), the court followed Montero and refused to exclude evidence obtained in violation of the NLRA from an administrative INS proceeding. As in Montero, the court failed to realize the way in which exploitative employers utilize the INS in order to circumvent coverage guaranteed by the NLRA. The court's statement that "there may be little deterrence to employers by excluding evidence in proceedings not involving the employers," id. at 460. is short-sighted. The Velasquez-Tabir court failed to recognize that employers are able to utilize the INA as a vehicle for undermining labor law only because the INS acts upon the unlawfully obtained evidence. When the INS acts upon such evidence, it lends credence to employers' threats to notify the INS if workers attempt to unionize.
166. In reality, the INS would not have moved to deport Montero were it not for the violation of the NLRA. The Agency currently conducts few workplace raids. See supra notes 53-56 and accompanying text. However, by continuing to perform raids in response to employer requests, the INS has eviscerated the labor law protections that Congress explicitly sought to preserve when enacting IRCA. See supra note 1.
167. Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 903-04 (1984).
168. 316 U.S. 31 (1942).
169. Id. at 47.
170. Administrative agencies exercise substantial discretion when prioritizing enforcement actions. See Sidney A. Shapiro & Randy S. Rabinowitz, Punishment Versus Cooperation in Regulatory Enforcement: A Case Study of OSHA, 49 ADMIN. L. REV. 713, 729 (1997) (examining OSHA's discretion to determine enforcement actions and arguing that inspectors should be given greater training and subsequent discretion to employ cooperative or punitive approaches depending upon the regulated entity's good faith attempt at compliance). Bo Cooper, General Counsel, INS, has recently stated that "the INS has prosecutorial discretion to place a removable alien in proceedings, or not to do so." Memorandum from Bo Cooper, General Counsel, INS 1, reprinted in 77 INTERPRETER RELEASES 961 (2000). Former INS Commissioner Doris Meissner advised that "[s]upervisors should ensure that front-line investigators understand that it is not mandatory to issue a [charging document] in every case where they have reason to believe that an alien is removable, and agents should be encouraged to bring questionable cases to a supervisor's attention." Memorandum from Doris Meissner, Commissioner, INS, to Regional Directors et al. 5 (Nov. 17, 2000) (on file with author).
171. Administrative agencies exercise substantial discretion when prioritizing enforcement actions. See Sidney A. Shapiro & Randy S. Rabinowitz, Punishment Versus Cooperation in Regulatory Enforcement: A Case Study of OSHA, 49 ADMIN. L. REV. 713, 729 (1997) (examining OSHA's discretion to determine enforcement actions and arguing that inspectors should be given greater training and subsequent discretion to employ cooperative or punitive approaches depending upon the regulated entity's good faith attempt at compliance). Bo Cooper, General Counsel, INS, has recently stated that "the INS has prosecutorial discretion to place a removable alien in proceedings, or not to do so." Memorandum from Bo Cooper, General Counsel, INS 1, reprinted in 77 INTERPRETER RELEASES 961 (2000). Former INS Commissioner Doris Meissner advised that "[s]upervisors should ensure that front-line investigators understand that it is not mandatory to issue a [charging document] in every case where they have reason to believe that an alien is removable, and agents should be encouraged to bring questionable cases to a supervisor's attention." Memorandum from Doris Meissner, Commissioner, INS, to Regional Directors et al. 5 (Nov. 17, 2000) (on file with author).
172. See, e.g., Memorandum from Bo Cooper, supra note 155, at 3. Because . . . the INS does not have the resources fully and completely to enforce the immigration laws against every violator, it exercises prosecutorial discretion thousands of times every day. INS enforcement priorities, including the removal of criminal aliens and the deterrence of alien smuggling, are examples of discretionary enforcement decisions on the broad, general level that focus INS enforcement resources in the areas of greatest need. Id. The majority of INS enforcement resources are devoted to preventing illegal entry, through the activities of the Border Patrol and the Inspections program. The Investigations program, which consumes fewer than one-fifth of INS enforcement resources, has the primary responsibility for identifying and apprehending those who are in the United States illegally. The Investigations program is also responsible for worksite enforcement, which includes enforcing the IRCA requirements that employers hire only U.S. citizens or authorized aliens and verifying their employment eligibility. U.S. GEN. ACCOUNTING OFFICE, GAO/HEHS-98-20, H-2A AGRICULTURAL GUESTWORKER PROGRAM: CHANGES COULD IMPROVE SERVICES TO EMPLOYERS AND BETTER PROTECT WORKERS 31 (1997). "Worksite enforcement consumed less than 4 percent of INS enforcement activities in fiscal year 1996." Id. On May 22, 1998, the INS introduced new procedures to be followed during worksite raids, including requirements that INS officers issue warnings before raiding employers suspected of violating the IRCA, obtain formal approval for raids from INS headquarters or regional offices, bring along "community liaison officers," and "avoid contentious circumstances," such as raiding restaurants during lunch or dinner hours. Memorandum from Michael A. Pearson, Executive Associate Commissioner, Office of Field Operations, INS, to Regional Directors at 3, 4, attachment B at 2 (May 22, 1998), reprinted in 75 INTERPRETER RELEASES 987 app. (1998).
173. See, e.g., Memorandum from Bo Cooper, supra note 155, at 3. Because . . . the INS does not have the resources fully and completely to enforce the immigration laws against every violator, it exercises prosecutorial discretion thousands of times every day. INS enforcement priorities, including the removal of criminal aliens and the deterrence of alien smuggling, are examples of discretionary enforcement decisions on the broad, general level that focus INS enforcement resources in the areas of greatest need. Id. The majority of INS enforcement resources are devoted to preventing illegal entry, through the activities of the Border Patrol and the Inspections program. The Investigations program, which consumes fewer than one-fifth of INS enforcement resources, has the primary responsibility for identifying and apprehending those who are in the United States illegally. The Investigations program is also responsible for worksite enforcement, which includes enforcing the IRCA requirements that employers hire only U.S. citizens or authorized aliens and verifying their employment eligibility. U.S. GEN. ACCOUNTING OFFICE, GAO/HEHS-98-20, H-2A AGRICULTURAL GUESTWORKER PROGRAM: CHANGES COULD IMPROVE SERVICES TO EMPLOYERS AND BETTER PROTECT WORKERS 31 (1997). "Worksite enforcement consumed less than 4 percent of INS enforcement activities in fiscal year 1996." Id. On May 22, 1998, the INS introduced new procedures to be followed during worksite raids, including requirements that INS officers issue warnings before raiding employers suspected of violating the IRCA, obtain formal approval for raids from INS headquarters or regional offices, bring along "community liaison officers," and "avoid contentious circumstances," such as raiding restaurants during lunch or dinner hours. Memorandum from Michael A. Pearson, Executive Associate Commissioner, Office of Field Operations, INS, to Regional Directors at 3, 4, attachment B at 2 (May 22, 1998), reprinted in 75 INTERPRETER RELEASES 987 app. (1998).
174. The IIRIRA mandates detention in many instances. See INA § 235(b)(1)(B)(iii) (IV), 8 U.S.C. § 1225(b)(1)(B)(iii)(IV) (Supp. V 1999). In addition, the IIRIRA revokes many discretionary waivers, including those previously available to long-time lawful permanent residents facing removal because of past convictions. See infra note 159.
175. Section 242 of the INA governs judicial review of removal orders. 8 U.S.C. § 1252 (Supp. V 1999). This section strips the federal courts of their ability to review most immigration decisions. The INA now prohibits judicial review in many instances, including the Attorney General's discretionary decisions regarding detention or release, INA § 236(e), 8 U.S.C. § 1226(e); the Attorney General's decisions regarding voluntary departure, INA § 240B(e), (f), 8 U.S.C. § 1229c(e), (f); and the Attorney General's decisions about any discretionary form of relief except asylum, INA § 242(a)(2)(B), 8 U.S.C. § 1252(a)(2)(B). In addition to removing judicial review of most immigration decisions made by the Attorney General, the INS had taken the position that the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996 and IIRIRA also stripped the federal courts of jurisdiction to rule on the legality of the statutory provisions themselves. However, in a 5-4 decision on June 25, 2001, the Supreme Court ruled that the district courts retained jurisdiction pursuant to 28 U.S.C. § 2241 (1994) to decide habeas corpus challenges involving pure questions of law. INS v. St. Cyr, No. 00-767, 2001 WL 703922, at *5-*6 (U.S. June 25, 2001). For a critique of the lack of judicial review of immigration matters, see M. Isabel Medina, Judicial Review - A Nice Thing? Article III, Separation of Powers and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 29 CONN. L. REV. 1525 (1997); and Hiroshi Motomura, Judicial Review in Immigration Cases After AADC: Lessons from Civil Procedure, 14 GEO. IMMIGR. L.J. 385 (2000).
176. Section 242 of the INA governs judicial review of removal orders. 8 U.S.C. § 1252 (Supp. V 1999). This section strips the federal courts of their ability to review most immigration decisions. The INA now prohibits judicial review in many instances, including the Attorney General's discretionary decisions regarding detention or release, INA § 236(e), 8 U.S.C. § 1226(e); the Attorney General's decisions regarding voluntary departure, INA § 240B(e), (f), 8 U.S.C. § 1229c(e), (f); and the Attorney General's decisions about any discretionary form of relief except asylum, INA § 242(a)(2)(B), 8 U.S.C. § 1252(a)(2)(B). In addition to removing judicial review of most immigration decisions made by the Attorney General, the INS had taken the position that the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996 and IIRIRA also stripped the federal courts of jurisdiction to rule on the legality of the statutory provisions themselves. However, in a 5-4 decision on June 25, 2001, the Supreme Court ruled that the district courts retained jurisdiction pursuant to 28 U.S.C. § 2241 (1994) to decide habeas corpus challenges involving pure questions of law. INS v. St. Cyr, No. 00-767, 2001 WL 703922, at *5-*6 (U.S. June 25, 2001). For a critique of the lack of judicial review of immigration matters, see M. Isabel Medina, Judicial Review - A Nice Thing? Article III, Separation of Powers and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 29 CONN. L. REV. 1525 (1997); and Hiroshi Motomura, Judicial Review in Immigration Cases After AADC: Lessons from Civil Procedure, 14 GEO. IMMIGR. L.J. 385 (2000).
177. For example, immigration judges can no longer grant discretionary relief to long-time lawful permanent residents who face deportation because of an aggravated felony. See, e.g., INA § 240A(a)(3), 8 U.S.C. § 1229b(a)(3) (Supp. V 1999); INA § 240A(b)(1) (C), 8 U.S.C. § 1229b(b)(1)(C) (making aggravated felons ineligible for cancellation of removal); INA § 240B(a)(1), 8 U.S.C. § 1229c(a)(1) (making aggravated felons ineligible for voluntary departure); INA § 249, 8 U.S.C. § 1259 (making aggravated felons ineligible for registry); cf. St. Cyr, 2001 WL 703992, at *12-*16 (holding that IIRIRA's revocation of discretionary relief under INA § 212(c) for criminal aliens does not apply retroactively to aliens who pleaded guilty to deportable crimes in reliance on the availability of 212(c) relief). Furthermore, section 306(a)(2) of the URIRA has severely curtailed judicial review of denials of discretionary relief. 8 U.S.C. § 1252.
178. See Letter from Robert Raben, Assistant Attorney General, Office of Legislative Affairs, to Congressman Barney Frank (Jan. 19, 2000), reprinted in 77 INTERPRETER RELEASES 217, 219 (2000). The INS exercises prosecutorial discretion with respect to many enforcement decisions. For example, the INS exercises prosecutorial discretion when deciding whether to initiate a removal case, to allow an alien to withdraw an application for admission, to grant voluntary departure, or to defer enforcement action. Similarly, the INS may parole an inadmissible alien into the United States for "urgent humanitarian reasons or significant public benefit." We also agree that more can be done to encourage these uses of prosecutorial discretion to avoid unnecessary hardship. Id.
179. The INS now concentrates on arresting and deporting criminal aliens, rather than deporting undocumented workers. See Uchitelle, supra note 59. Robert L. Bach, INS Associate Commissioner for Policy and Planning has stated that "[i]t is just the market at work, drawing people to jobs, and the I.N.S. has chosen to concentrate its actions on aliens who are a danger to the community." Id. INS's general counsel recently described prosecutorial discretion: The INS has the discretionary authority not to arrest [an alien believed to be in the United States in violation of the INA], even if there is probable cause to believe he is in the United States unlawfully. If the INS encounters several aliens and has probable cause to believe all of them are present unlawfully, the INS has the discretionary authority to arrest some of them, but not others . . . . Memorandum from Bo Cooper, supra note 155, at 6.
180. 8 C.F.R. § 239.2(a)(7) (2000) specifies that an INS officer can cancel a notice to appear if "[circumstances of the case have changed after the notice to appear was issued to such an extent that continuation is no longer in the best interest of the government." Former Commissioner Meissner explained: Even when an immigration officer has reason to believe that an alien is removable and that there is sufficient evidence to obtain a final order of removal, it may be appropriate to decline to proceed with that case . . . . The INS may exercise its discretion throughout the enforcement process. Thus, the INS can choose whether to issue an NTA [notice to appear], whether to cancel an NTA prior to filing with the immigration court or move for dismissal in immigration court, whether to detain (for those aliens not subject to mandatory detention), whether to offer an alternative to removal such as voluntary departure or withdrawal of an application for admission, and whether to stay an order of deportation. Memorandum from Doris Meissner to Regional Directors et al., supra note 155, at 6 (citations omitted).
181. Congress must find a way to make labor law statutes and immigration laws "compatible in practice." William J. Murphy, Note, Immigration Reform Without Control: The Need for an Integrated Immigration-Labor Policy, 17 SUFFOLK TRANSNAT'L L. REV. 165, 177 (1994) (arguing that the only viable and effective way to achieve such a policy is to make exploitative employers duly liable under both the NLRA and FLSA). In Robinson v. Shell Oil Co., 519 U.S. 337 (1997), the Supreme Court, in interpreting a provision of Title VII of the Civil Rights Act of 1964, looked to the statute's purpose and emphasized the importance of considering practical consequences in the labor and employment context when "[m]aintaining unfettered access to statutory remedial mechanisms" is at stake. Id. at 346.
182. Susan Martin, Director of the 1997 Commission on Immigration Reform, has pointed out that no one has responsibility for coordinating the entire removal process. Martin, supra note 47. According to Martin, "Often, those responsible for apprehension pick up persons whom other players in the process would consider low priorities (for example, someone who has a pending application for legal status that is likely to be approved) because they are more readily identifiable." Id.
183. The INS's revised operations instruction states: When information is received concerning the employment of undocumented . . . aliens, consideration should be given to whether the information is being provided to interfere with the rights of employees to form, join or assist labor organizations or to exercise their rights not to do so; to be paid minimum wages and overtime; to have safe work places; to receive compensation for work related injuries; to be free from discrimination based on race, gender, age, national origin, religion, handicap; or to retaliate against employees for seeking to vindicate these rights. INS Operations Instructions § 287.3a (as revised in 1996).
184. The operations instruction continues: Whenever information received from any source creates a 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 a labor dispute is in progress. The Information Officer at the Regional Office of the National Labor Relations Board can supply status information on unfair labor practice charges or union election or decertification petitions that are pending involving most private sector, non-agricultural employers. Wage and hour information can be obtained from the United States Department of Labor (Wage and Hour Division) or the state labor department. Id.
185. Id.
186. Id.
187. Id. The operations instruction also addresses the situation in which the INS learns of a labor dispute (or the employer's use of the immigration laws in retaliation for protected activity) only after taking action. In such a situation, the lead immigration officer must ensure to the extent possible that any aliens necessary to the prosecution of any employer violations are not removed from the country without notifying the law enforcement agency that has jurisdiction over these violations. The determination of whether to hold detainees or allow interviews by investigators or attorneys is to be made on a case-by-case basis. Id.
188. Id.
189. Montero v. INS, 124 F.3d 381, 385 (2d Cir. 1997).
190. See Worker Organization Investigating INS Raid on Meatpacking Plant, U.S. NEWSWIRE, Dec. 7, 2000.
191. In a December 5, 2000 press release by Nebraska Appleseed, the vice president of the UFCW said, "These workers [are] twice victimized - once by the greed of the packing companies and then by immigration laws that terrorize[ ] workers in the exercise of their legitimate rights under the law." Id.
192. The INS's general counsel explained that the fact that a violation of the immigration laws is a continuing violation leads to practical difficulties with the exercise of prosecutorial discretion. In particular, an INS decision to forego placing an alien . . . in proceedings does not cure the violation . . . . . . . . . . . so the alien remains in a continuing, difficult state of limbo and illegality. Memorandum from Bo Cooper, supra note 155, at 10.
193. "Deferred action status" refers to an administrative choice to give some cases lower priority for removal. INS Operations Instructions § 242.1A(22) (rescinded 1997).
194. Nichols v. INS, 590 F.2d 802, 805 n.9 (9th Cir. 1979) (quoting INS Operations Instructions § 103.1(a)(1)(ii) (1975)).
195. See id. at 807.
196. Id. at 808.
197. Compare INS Operations Instructions § 103.1(a)(1)(ii) (1975) ("[The district director] shall recommend consideration for deferred action"), with INS Operations Instructions § 242.1A(22) (rescinded 1997) ("The district director may, in his or her discretion, recommend consideration of deferred action, an act of administrative choice to give some cases lower priority and in no way an entitlement, in appropriate cases."). The current guidelines explicitly state that "no alien has the right to deferred action." INS Standard Operating Procedures for Enforcement Officers, pt. X.
198. See INS Standard Operating Procedures for Enforcement Officers, pt. X.
199. See INS Operations Instructions § 242.1A(22)(C) (rescinded 1997), directing officers to consider the "likelihood that because of the sympathetic factors in the case, a large amount of adverse publicity will be generated." Currently included in the non-exclusive list of factors to be considered are "the likelihood of ultimately removing the alien"; "the presence of sympathetic factors which . . . could result in a distortion of the law"; "whether or not the individual is a member of a class of deportable aliens whose removal has been given a high enforcement priority"; and "whether the alien's continued presence in the U.S. is desired by local, state, or federal law enforcement authorities for purposes of ongoing criminal or civil investigation or prosecution." INS Standard Operating Procedures for Enforcement Officers, pt. X(B).
200. INS Standard Operating Procedures for Enforcement Officers, pt. X(B).
201. For eloquent language on the role of mercy in immigration decisions and the judiciary's ability to intervene when justice requires it, see Perales v. Casillas, 903 F.2d 1043 (5th Cir. 1990). According to the majority, "Granting an illegally present alien permission to remain and work in this country is a dispensation of mercy, and as no one is entitled to mercy, there are no standards by which judges may patrol its exercise." Id. at 1051. However, in a lone dissent, Judge Goldberg relied upon William Shakespeare's Portia for the meaning of mercy: The quality of mercy is not strain'd, It droppeth as the gentle rain from Heaven Upon the place beneath: it is twice blest; It blesseth him that gives and him that takes; 'Tis mightiest in the mightiest; it becomes The throne'd monarch better than his crown . . . Mercy is above this sceptred sway; It is enthrone'd in the hearts of kings, It is an attribute to God himself. Id. at 1053 (Goldberg, J., dissenting). In the words of Judge Goldberg, "Inspiring our constitution, mercy emanates from the empyrean, not from the executive branch, or in this case, the attorney general's scepter." Id. For further discussion of the moral issues animat-ing immigration law, see infra Part VI.
202. The INS's implementation of VAWA presents a clear example of the Agency's ability to provide discretionary relief to protect a vulnerable population. While I do not intend to equate physical violence against a spouse with exploitation in the workplace, the same principles of power and control often animate both situations.
203. Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, §§ 40001-40703, 108 Stat. 1796, 1902-55.
204. INA § 204(a)(1)(A)(iii), 8 U.S.C. § 1154(a)(1)(A)(iii) (1994) (spouses of citizens); INA § 204(a)(1)(B)(ii), 8 U.S.C. § 1154(a)(1)(B)(ii) (spouses of lawful permanent residents); 8 C.F.R. § 204.2(c) (2000). This self-petitioning process is an exception to the normal procedures for family-based immigration. Prior to the enactment of VAWA, the battered spouse could not gain lawful status unless the citizen or lawful
205. However, pursuant to IIRIRA, the spouses of lawful permanent residents who remain in the country without legal status face a three- or ten-year bar to admission if they depart from the United States and subsequently seek to return. See INA § 212(a)(9)(B)(i), 8 U.S.C. § 1182(a)(9)(B)(i) (Supp. V 1999).
206. Pursuant to INS regulations, once a battered spouse makes a prima facie showing of eligibility for an approved petition, the INS grants deferred action status. See 8 C.RR. § 204.2(c) (2000). Once the INS grants deferred action status, the applicant may be granted employment authorization upon a showing of economic necessity. 8 C.F.R. § 274a.12(c)(14) (2000).
207. While one could argue that battered spouses of lawful permanent residents gain an advantage not afforded to non-battered spouses of lawful permanent residents, in reality, the INS can only deport a small percentage of deportable aliens and must therefore make policy decisions about which aliens to target.
208. See infra Part VI.C.
209. The case of the forty-nine abused deaf Mexicans who were forced to sell trinkets on the subway, turn over their wages, and live in slave-like conditions in Queens exemplifies the extreme cases that attract media attention. The undocumented workers were held in detention for a year while assisting in the prosecutions of their eight bosses. Ultimately, after aggressive efforts by counsel for the American Civil Liberties Union and immigrant rights advocates, the government agreed to allow the Mexicans to remain in the United States. Mirta Ojito, U.S. Permits Deaf Mexicans, Forced to Peddle, to Remain, N. Y. TIMES, June 20, 1998, at A1 [hereinafter Ojito, U.S. Permits Deaf Mexicans to Remain]; Mirta Ojito, Out of Servitude, Deaf Mexicans Languish in Limbo of Motel, N. Y. TIMES, Mar. 22, 1998, § 1, at 35 [hereinafter Ojito, Out of Servitude].
210. The case of the forty-nine abused deaf Mexicans who were forced to sell trinkets on the subway, turn over their wages, and live in slave-like conditions in Queens exemplifies the extreme cases that attract media attention. The undocumented workers were held in detention for a year while assisting in the prosecutions of their eight bosses. Ultimately, after aggressive efforts by counsel for the American Civil Liberties Union and immigrant rights advocates, the government agreed to allow the Mexicans to remain in the United States. Mirta Ojito, U.S. Permits Deaf Mexicans, Forced to Peddle, to Remain, N. Y. TIMES, June 20, 1998, at A1 [hereinafter Ojito, U.S. Permits Deaf Mexicans to Remain]; Mirta Ojito, Out of Servitude, Deaf Mexicans Languish in Limbo of Motel, N. Y. TIMES, Mar. 22, 1998, § 1, at 35 [hereinafter Ojito, Out of Servitude].
211. The case of the forty-nine abused deaf Mexicans who were forced to sell trinkets on the subway, turn over their wages, and live in slave-like conditions in Queens exemplifies the extreme cases that attract media attention. The undocumented workers were held in detention for a year while assisting in the prosecutions of their eight bosses. Ultimately, after aggressive efforts by counsel for the American Civil Liberties Union and immigrant rights advocates, the government agreed to allow the Mexicans to remain in the United States. Mirta Ojito, U.S. Permits Deaf Mexicans, Forced to Peddle, to Remain, N. Y. TIMES, June 20, 1998, at A1 [hereinafter Ojito, U.S. Permits Deaf Mexicans to Remain]; Mirta Ojito, Out of Servitude, Deaf Mexicans Languish in Limbo of Motel, N. Y. TIMES, Mar. 22, 1998, § 1, at 35 [hereinafter Ojito, Out of Servitude].
212. The case of the forty-nine abused deaf Mexicans who were forced to sell trinkets on the subway, turn over their wages, and live in slave-like conditions in Queens exemplifies the extreme cases that attract media attention. The undocumented workers were held in detention for a year while assisting in the prosecutions of their eight bosses. Ultimately, after aggressive efforts by counsel for the American Civil Liberties Union and immigrant rights advocates, the government agreed to allow the Mexicans to remain in the United States. Mirta Ojito, U.S. Permits Deaf Mexicans, Forced to Peddle, to Remain, N. Y. TIMES, June 20, 1998, at A1 [hereinafter Ojito, U.S. Permits Deaf Mexicans to Remain]; Mirta Ojito, Out of Servitude, Deaf Mexicans Languish in Limbo of Motel, N. Y. TIMES, Mar. 22, 1998, § 1, at 35 [hereinafter Ojito, Out of Servitude].
213. See, e.g., THE FED'N FOR AM. IMMIGRATION REFORM, IMMIGRATION AND JOB DISPLACEMENT (1999), http://www.fairus.org/html/04172910.htm ("The critical potential negative impacts of immigrants are displacement of incumbent worker groups from their jobs and wage depression for those who remain in the affected sectors." (quoting INS, THE TRIENNIAL COMPREHENSIVE REPORT ON IMMIGRATION (1999))). According to the Federation for American Immigration Reform, "immigration has been responsible for forty to fifty percent of the wage depression in recent decades." Id.; see also PETER BRIMELOW, ALIEN NATION, at XV (1995). Brimelow characterizes current immigration policy as "Adolf Hitler's posthumous revenge on America" and refers to the assertion that immigration benefits the economy as a myth. Id. at 139. According to Brimelow, recent immigrants are much more likely to drain resources than to contribute to the economy. See id. at 151-
214. See, e.g., THE FED'N FOR AM. IMMIGRATION REFORM, IMMIGRATION AND JOB DISPLACEMENT (1999), http://www.fairus.org/html/04172910.htm ("The critical potential negative impacts of immigrants are displacement of incumbent worker groups from their jobs and wage depression for those who remain in the affected sectors." (quoting INS, THE TRIENNIAL COMPREHENSIVE REPORT ON IMMIGRATION (1999))). According to the Federation for American Immigration Reform, "immigration has been responsible for forty to fifty percent of the wage depression in recent decades." Id.; see also PETER BRIMELOW, ALIEN NATION, at XV (1995). Brimelow characterizes current immigration policy as "Adolf Hitler's posthumous revenge on America" and refers to the assertion that immigration benefits the economy as a myth. Id. at 139. According to Brimelow, recent immigrants are much more likely to drain resources than to contribute to the economy. See id. at 151-
215. See, e.g., THE FED'N FOR AM. IMMIGRATION REFORM, IMMIGRATION AND JOB DISPLACEMENT (1999), http://www.fairus.org/html/04172910.htm ("The critical potential negative impacts of immigrants are displacement of incumbent worker groups from their jobs and wage depression for those who remain in the affected sectors." (quoting INS, THE TRIENNIAL COMPREHENSIVE REPORT ON IMMIGRATION (1999))). According to the Federation for American Immigration Reform, "immigration has been responsible for forty to fifty percent of the wage depression in recent decades." Id.; see also PETER BRIMELOW, ALIEN NATION, at XV (1995). Brimelow characterizes current immigration policy as "Adolf Hitler's posthumous revenge on America" and refers to the assertion that immigration benefits the economy as a myth. Id. at 139. According to Brimelow, recent immigrants are much more likely to drain resources than to contribute to the economy. See id. at 151-
216. Julian Simon, however, argues that the influx of immigrants into the U.S. workforce may actually decrease the unemployment rates in the nonimmigrant population because immigrant consumption benefits the entire economy. JULIAN SIMON, THE ECONOMIC CONSEQUENCES OF IMMIGRATION 225-35 (1999). Likewise, because many immigrants start their own businesses, the rhetoric suggesting that newly arriving undocumented workers displace or adversely affect the wages of citizen workers is misguided. Id. at 78-79, 262. Moreover, because undocumented workers tend to shy away from governmental assistance programs for fear of being apprehended and because of the 1996 changes in the INA that disqualify such immigrants from receiving public benefits, illegal immigration often results in a net overall gain to the national economy. Id. at 314, 318-19. Simon further argues that the federal income tax and Social Security contributions of undocumented workers "considerably exceed[ed] the cost of the services they use[d]." Id. at 318; see also CASTLES & MILLER, supra note 44 at 182 (noting that the last twenty years of literature supports the notion that "immigration causes no crowding-out on the labor market and does not depress the income of nationals" (quoting TRENDS IN INTERNATIONAL MIGRATION: ANNUAL REPORT 1993 (1994))); Edward P. Lazear, Diversity and Immigration, in ISSUES IN THE ECONOMICS OF IMMIGRATION 117, 131 (George Borjas ed., 2000) (using census data to demonstrate the overall economic benefit of immigration due to increased consumption and international movement of goods). See generally ARGUING IMMIGRATION (Nicolaus Mills ed., 1994).
217. Julian Simon, however, argues that the influx of immigrants into the U.S. workforce may actually decrease the unemployment rates in the nonimmigrant population because immigrant consumption benefits the entire economy. JULIAN SIMON, THE ECONOMIC CONSEQUENCES OF IMMIGRATION 225-35 (1999). Likewise, because many immigrants start their own businesses, the rhetoric suggesting that newly arriving undocumented workers displace or adversely affect the wages of citizen workers is misguided. Id. at 78-79, 262. Moreover, because undocumented workers tend to shy away from governmental assistance programs for fear of being apprehended and because of the 1996 changes in the INA that disqualify such immigrants from receiving public benefits, illegal immigration often results in a net overall gain to the national economy. Id. at 314, 318-19. Simon further argues that the federal income tax and Social Security contributions of undocumented workers "considerably exceed[ed] the cost of the services they use[d]." Id. at 318; see also CASTLES & MILLER, supra note 44 at 182 (noting that the last twenty years of literature supports the notion that "immigration causes no crowding-out on the labor market and does not depress the income of nationals" (quoting TRENDS IN INTERNATIONAL MIGRATION: ANNUAL REPORT 1993 (1994))); Edward P. Lazear, Diversity and Immigration, in ISSUES IN THE ECONOMICS OF IMMIGRATION 117, 131 (George Borjas ed., 2000) (using census data to demonstrate the overall economic benefit of immigration due to increased consumption and international movement of goods). See generally ARGUING IMMIGRATION (Nicolaus Mills ed., 1994).
218. Julian Simon, however, argues that the influx of immigrants into the U.S. workforce may actually decrease the unemployment rates in the nonimmigrant population because immigrant consumption benefits the entire economy. JULIAN SIMON, THE ECONOMIC CONSEQUENCES OF IMMIGRATION 225-35 (1999). Likewise, because many immigrants start their own businesses, the rhetoric suggesting that newly arriving undocumented workers displace or adversely affect the wages of citizen workers is misguided. Id. at 78-79, 262. Moreover, because undocumented workers tend to shy away from governmental assistance programs for fear of being apprehended and because of the 1996 changes in the INA that disqualify such immigrants from receiving public benefits, illegal immigration often results in a net overall gain to the national economy. Id. at 314, 318-19. Simon further argues that the federal income tax and Social Security contributions of undocumented workers "considerably exceed[ed] the cost of the services they use[d]." Id. at 318; see also CASTLES & MILLER, supra note 44 at 182 (noting that the last twenty years of literature supports the notion that "immigration causes no crowding-out on the labor market and does not depress the income of nationals" (quoting TRENDS IN INTERNATIONAL MIGRATION: ANNUAL REPORT 1993 (1994))); Edward P. Lazear, Diversity and Immigration, in ISSUES IN THE ECONOMICS OF IMMIGRATION 117, 131 (George Borjas ed., 2000) (using census data to demonstrate the overall economic benefit of immigration due to increased consumption and international movement of goods). See generally ARGUING IMMIGRATION (Nicolaus Mills ed., 1994).
219. Julian Simon, however, argues that the influx of immigrants into the U.S. workforce may actually decrease the unemployment rates in the nonimmigrant population because immigrant consumption benefits the entire economy. JULIAN SIMON, THE ECONOMIC CONSEQUENCES OF IMMIGRATION 225-35 (1999). Likewise, because many immigrants start their own businesses, the rhetoric suggesting that newly arriving undocumented workers displace or adversely affect the wages of citizen workers is misguided. Id. at 78-79, 262. Moreover, because undocumented workers tend to shy away from governmental assistance programs for fear of being apprehended and because of the 1996 changes in the INA that disqualify such immigrants from receiving public benefits, illegal immigration often results in a net overall gain to the national economy. Id. at 314, 318-19. Simon further argues that the federal income tax and Social Security contributions of undocumented workers "considerably exceed[ed] the cost of the services they use[d]." Id. at 318; see also CASTLES & MILLER, supra note 44 at 182 (noting that the last twenty years of literature supports the notion that "immigration causes no crowding-out on the labor market and does not depress the income of nationals" (quoting TRENDS IN INTERNATIONAL MIGRATION: ANNUAL REPORT 1993 (1994))); Edward P. Lazear, Diversity and Immigration, in ISSUES IN THE ECONOMICS OF IMMIGRATION 117, 131 (George Borjas ed., 2000) (using census data to demonstrate the overall economic benefit of immigration due to increased consumption and international movement of goods). See generally ARGUING IMMIGRATION (Nicolaus Mills ed., 1994).
220. See, e.g., Johnson, supra note 22, at 1218. Professor Johnson notes that while untrue, the conventional wisdom about "illegal aliens" (i.e., that they take jobs, victimize citizens, and strain social services) persists and influences lawmakers and policymakers. Id. Such views persist because the undocumented live in isolation and secrecy, due to the omnipresent threat of deportation, and Johnson argues that the popular image will not be transformed until the undocumented can overcome the state of fear in which they live. Id. at 1232; see also Kevin R. Johnson, An Essay on Immigration, Citizenship, and U.S./Mexico Relations: The Tale of Two Treaties, 5 SW. J.L. & TRADE AM. 121, 125 (1998).
221. For a discussion of the problems inherent in characterizing employment rights for undocumented workers as a "reward" for illegal immigration, see Peter Marguilies, Stranger and Afraid: Undocumented Workers and Federal Employment Law, 38 DEPAUL L. REV. 553 (1989). Professor Marguilies argues that "[b]y focusing on undocumented workers, the reward theory neglects the role of domestic employer demand in promoting illegal immigration." Id. at 555. According to Marguilies, "Instead, the effect of employment law remedies on employer demand for undocumented labor should shape the interaction of immigration policy and employment law." Id.
222. The Department of Labor and the INS recently acknowledged the broader policy purposes served by guaranteeing confidentiality in complaint-driven labor investigations. On November 23, 1998, the Department of Labor's Employment Standards Administration ("ESA") entered into a memorandum of understanding with the INS. Pursuant to this agreement, Labor Department investigators, when responding to workers' complaints alleging labor violations, will no longer refer suspected violations of immigration laws to the INS. Memorandum of Understanding to Enhance Worksite Enforcement Sanctions and Labor Standards (Nov. 23, 1998), http://www.ins.usdoj.gov/graphics/publicaffairs/ backgrounds/laborbg.htm.
223. Such a policy could be modeled on the existing statutory provision that precludes the INS from removing a battered spouse based solely upon information provided by the abuser. Section 384(a) of the IIRIRA provides: [I]n no case may the Attorney General, or any other official or employee of the Department of Justice (including any bureau or agency of such Department) - (1) make an adverse determination of admissibility or deportability of an alien . . . using information furnished solely by - (A) a spouse or parent who has battered the alien or subjected the alien to extreme cruelty. 8 U.S.C. § 1367(a) (Supp. V 1999).
224. This same tension between rewarding undocumented workers by allowing them to receive remedies related to their illegal employment and rewarding employers who hire undocumented workers by granting them immunity from the requirements of labor statutes plays out in the context of workers' compensation cases as well. See, e.g., Reinforced Earth Co. v. Workers' Comp. Appeal Bd. (Astudillo), 749 A.2d 1036 (Pa. Commw. Ct. 2000). In Astudillo, an employer challenged an award of the Workers' Compensation Appeal Board to an undocumented worker, arguing that even if benefits were not precluded by the IRCA, the court should employ a public policy exception that had been previously applied to preclude benefits in the context of an escaped prisoner. Id. at 1038. In an earlier case, the court held that to grant workers' compensation benefits to an escaped prisoner would have rewarded him for his prison escape, in contravention of public policy. Graves v. Workmen's Comp. Appeal Bd. (Newman), 668 A.2d 606 (Pa. Commw. Ct. 1995). In rejecting the employer's call to extend the escaped prisoner exception to the context of undocumented workers, the court stated that it would not serve "public policy" to deny workers' compensation benefits to an illegal alien merely because of their immigration status . . . . Further, to do so would potentially subvert any public policy against illegal immigration because employers may actively seek out illegal aliens rather than citizens or legal residents because they will not be forced to insure against or absorb the costs of work-related injuries. Astudillo, 749 A.2d at 1039.
225. See INA § 201(e), 8 U.S.C. § 1151(e) (1994); INA § 203(c), 8 U.S.C. § 1153(c).
226. INAU 245A, 8 U.S.C. § 1255a (1994).
227. Ojito, U.S. Permits Deaf Mexicans to Remain, supra note 191.
228. Ojito, Out of Servitude, supra note 191.
229. Ojito, U.S. Permits Deaf Mexicans to Remain, supra note 191.
230. Id.
231. The "S" visa has been referred to as a "snitch" visa. A state or federal law enforcement agency must apply for the visa on the alien's behalf, certifying the need for and nature of the proposed cooperation, and providing certain required information. The Attorney General must then make certain findings before the application can be submitted to the INS. Included within the necessary findings are the requirements that the alien possess "critical reliable information concerning a criminal organization or enterprise," that the alien is willing to testify, and that the alien's presence in the United States is essential to the criminal investigation or prosecution. INA § 101(a)(15)(S), 8 U.S.C. § 1101(a)(15)(S) (1994). If the INS approves the application, the alien may be admitted for three years. INA § 214(k)(3), 8 U.S.C. § 1184(k)(3) (Supp. V 1999). After admission pursuant to an "S" visa, if the alien has supplied information that has substantially contributed to the success of a criminal or terrorist investigation or prosecution, the Attorney General may adjust the alien's status to that of a lawful permanent resident. INA § 245(j), 8 U.S.C. § 1255(j) (Supp. V 1999). No more than 200 aliens per fiscal year can receive "S" visas to assist in criminal prosecutions. INA § 214(k)(1), 8 U.S.C. § 1184(k)(1) (Supp. V 1999). No more than fifty aliens per fiscal year can receive "S" visas to assist in terrorist prosecutions. Id.; see also Christina M. Ceballos. Comment, Adjustment of Status for Alien Material Witnesses: Is It Coming Three Years Too Late?, 54 U. MIAMI L. REV. 75 (1999). Ceballos argues against the INS's position that the recipient of an "S" visa must wait three years before being able to adjust status to lawful permanent resident. Id. at 89. Ceballos critiques the waiting period as an arbitrary INS policy not required by statute or regulation that causes dire consequences for alien material witnesses and their families, who must wait to become permanent residents. Id. at 91, 95; see also Constance Emerson Crooker, The "S" Stands for Snitch, CHAMPION, Nov. 1997, at 29 (urging criminal defense attorneys to pursue "S" visas for undocumented clients when the prosecution wants their testimony). 205 See supra note 204.
232. The "S" visa has been referred to as a "snitch" visa. A state or federal law enforcement agency must apply for the visa on the alien's behalf, certifying the need for and nature of the proposed cooperation, and providing certain required information. The Attorney General must then make certain findings before the application can be submitted to the INS. Included within the necessary findings are the requirements that the alien possess "critical reliable information concerning a criminal organization or enterprise," that the alien is willing to testify, and that the alien's presence in the United States is essential to the criminal investigation or prosecution. INA § 101(a)(15)(S), 8 U.S.C. § 1101(a)(15)(S) (1994). If the INS approves the application, the alien may be admitted for three years. INA § 214(k)(3), 8 U.S.C. § 1184(k)(3) (Supp. V 1999). After admission pursuant to an "S" visa, if the alien has supplied information that has substantially contributed to the success of a criminal or terrorist investigation or prosecution, the Attorney General may adjust the alien's status to that of a lawful permanent resident. INA § 245(j), 8 U.S.C. § 1255(j) (Supp. V 1999). No more than 200 aliens per fiscal year can receive "S" visas to assist in criminal prosecutions. INA § 214(k)(1), 8 U.S.C. § 1184(k)(1) (Supp. V 1999). No more than fifty aliens per fiscal year can receive "S" visas to assist in terrorist prosecutions. Id.; see also Christina M. Ceballos. Comment, Adjustment of Status for Alien Material Witnesses: Is It Coming Three Years Too Late?, 54 U. MIAMI L. REV. 75 (1999). Ceballos argues against the INS's position that the recipient of an "S" visa must wait three years before being able to adjust status to lawful permanent resident. Id. at 89. Ceballos critiques the waiting period as an arbitrary INS policy not required by statute or regulation that causes dire consequences for alien material witnesses and their families, who must wait to become permanent residents. Id. at 91, 95; see also Constance Emerson Crooker, The "S" Stands for Snitch, CHAMPION, Nov. 1997, at 29 (urging criminal defense attorneys to pursue "S" visas for undocumented clients when the prosecution wants their testimony). 205 See supra note 204.
233. See Victims of Trafficking and Violence Protection Act of 2000, Pub. L. No. 106-386, § 107(e)(1), 114 Stat. 1464, 1477. Section 107(e) provides for the "Protection and Assistance for Victims of Trafficking" through the creation of a new nonimmigrant "T" visa for an alien who is a victim of trafficking in persons; is in the United States as a result of having been trafficked here; has assisted in the investigation or prosecution of trafficking or is under fifteen years of age; and would suffer extreme hardship upon removal. 8 U.S.C.A. § 1101(a)(15)(T)(i) (West 2001). The legislation contains an annual cap of 5000 "T" visas for trafficking victims. Id. § 1184(n)(2). Pursuant to section 107(f), the Attorney General has the authority to adjust the status of a "T" visa holder to that of a permanent resident if the alien has been physically present for a continuous period of at least three years since the granting of a "T" visa; "has, throughout such period, been a person of good moral character"; has assisted in the investigation or prosecution of trafficking acts; or would suffer extreme hardship upon removal. Id. § 1255(l)(1). An annual cap of 5000 is also placed on adjustment of status for trafficking victims. Id. § 1255(1)(3)(A).
234. This proposal is similar to one recently advanced by the AFL-CIO, which formerly was a strong supporter of the IRCA's enactment but now is a firm believer that "employer sanctions, as a nationwide policy applied to all workplaces, has failed and should be eliminated." AFL-CIO, Executive Council Actions - Immigration (Feb. 16, 2000), http://www.aflcio.org/publ/estatements/feb2000/immigr.htm. The AFL-CIO seeks the enactment of whistleblower protections providing protected immigration status for undocumented workers who report violations of worker protection laws or cooperate with federal agencies during investigations of employment, labor and discrimination violations. Such workers should be accorded full remedies, including reinstatement and backpay. Further, undocumented workers who exercise their rights to organize and bargain collectively should also be provided protected immigration status. Id. At the same time, the labor umbrella organization is urging the adoption of criminal penalties "to punish employers who recruit undocumented workers from abroad for the purpose of exploiting workers for economic gain." Id.
235. See Ontiveros, supra note 27, at 629. According to Professor Ontiveros, the number of undocumented people entering the United States will not decline until job opportunities decrease or until undocumented workers become prohibitively expensive to employ. Id. Assuming the country truly wants to stem the tide, fewer undocumented workers will be employed only if employers are punished fully for exploiting them. Subjecting discriminating employers to costly remedies serves the underlying purpose of the IRCA because doing so reduces job opportunities for undocumented immigrants and thus reduces their incentive to illegally immigrate. Id.
236. As a practical matter, given INS priorities regarding whom to deport, it is unlikely that the undocumented workers would ultimately be placed in removal proceedings. Rather, such undocumented workers would be in the same position they were in prior to the employer's unfair labor practices. However, this approach still leaves undocumented workers vulnerable to deportation, see supra note 143 and accompanying text, a result that runs counter to principles of community membership and justice, see infra Part VI.C. Indeed, it has been argued that those who are employed in the United States should be entitled to permanent lawful immigration status. See, e.g., Jenny Schulz, Grappling with a Meaty Issue: IIRIRA's Effect on Immigrants in the Meatpacking Industry, 2 J. GENDER RACE & JUST. 137, 159 (1998) (proposing a system whereby anyone working in the United States would be given the opportunity to obtain permanent legal status, with every employer limited to a reasonable number of new employees per year). The AFL-CIO has also called for a broad amnesty for undocumented workers. AFL-CIO, supra note 207.
237. See supra notes 165-168 and accompanying text.
238. See supra notes 204, 206.
239. In 1995, immigration and labor advocates representing migrant farmworkers and other low-wage immigrant workers urged the NLRB, the Department of Labor, and the INS to enact a similar policy to protect undocumented workers who wished to file labor complaints. The advocates called upon the INS to grant temporary immigration status to aggrieved undocumented workers who would be witnesses or plaintiffs in labor actions. In the case of undocumented workers who were out of the country, the advocates urged INS to grant parole status so that the workers could lawfully reenter for trial or deposition. See Letter from Rebecca Smith, Attorney, Evergreen Legal Services et al., to Maria Echaveste, Administrator, Wage and Hour Division, U.S. Dep't of Labor et al. 6 (Jan. 4, 1995) (on file with author) The proposal was modeled on the anti-retaliation provisions of the Migrant and Seasonal Agricultural Worker Protection Act ("AWPA"), 29 U.S.C. § 1855(a) (1994). The AWPA's anti-retaliation provision provides that No person shall intimidate, threaten, restrain, coerce, blacklist, discharge, or in any manner discriminate against any migrant or seasonal agricultural worker because such worker has, with just cause, filed any complaint or instituted, or caused to be instituted, any proceeding under or related to this chapter, or has testified or is about to testify in any such proceedings, or because of the exercise, with just cause, by such worker on behalf of himself or others of any right or protection afforded by this Act. Id. The proposed language reads: Any worker who has, with just cause, filed any complaint or instituted or caused to be instituted any proceeding for the enforcement of his or her rights under any state or federal labor protective statute or has testified or is expected to testify in any proceedings, or communicated to any person his or her intention to initiate such proceedings, shall be granted voluntary departure and work authorization pursuant to 8 C.F.R. § 274a.12(c)(12) for the time in which his or her presence in the United States is necessary, including deposition, hearing or trial. Letter from Rebecca Smith et al. to Maria Echaveste et al., supra.
240. My focus in this Article is limited to the treatment of undocumented workers within our borders. In urging those who oppose subordination of undocumented workers to address also broader questions of whether our borders should be regulated at all, Professor Bosmak warns that "[t]he two commitments (against marginalization of persons and for borders around the community) are mutually incompatible, at least where the status of the undocumented immigrants are concerned." Bosniak, supra note 143, at 593. Bosniak also emphasizes, "Addressing the status of undocumented immigrants requires progressives - activists and scholars alike - to confront important tensions within our own commitments . . . concerning the normative significance of national boundaries." Id. at 559. But see Owen Fiss, The Immigrant as Pariah, in A COMMUNITY OF EQUALS: THE CONSTITUTIONAL PROTECTION OF NEW AMERICANS 3 (Joshua Cohen & Joel Rogers eds., 1999). Fiss explicitly states that his essay criticizing laws barring immigrants from working, receiving social benefits, or obtaining educational benefits is not meant to "surreptitiously question[ ] the validity of laws regulating the admission of immigrants to this country. . . My point is not to subvert the admission process or otherwise open the borders, but rather to insist that laws regarding admission cannot be enforced or implemented in ways that would transform immigrants into pariahs." Id. at 16.
241. David L. Gregory, Catholic Labor Theory and the Transformation of Work, 45 WASH. & LEE L. REV. 119, 130 (1988).
242. C. John Cicero, TNS, Inc. - The National Labor Relations Board's Failed Vision of Worker Self-Help to Escape Longterm Health Threats from Workplace Carcinogens and Toxins, 24 STETSON L. REV. 19, 80 (1994).
243. In the words of Howard Lesnick, "the central idea of [an alternative consciousness ot work] is that part of your being a person is bound up with wanting to work, with wanting to be useful, with wanting to express your energy, your creativity, your connection to other people." Id. at 90 (quoting Howard Lesnick, Artists, Workers and the Law of Work: Keynote Address, 16 J. ARTS MGMT. & L. 39 (1986)).
244. See, e.g., International Covenant on Economic, Social and Cultural Rights, Jan. 3, 1976, art. 6, 993 U.N.T.S. 3 ("The States Parties to the present Covenant recognize the right to work."); Universal Declaration of Human Rights, art. 23, G.A. Res. 217A (III), U.M. GAOR, 3d Sess., Supp. No. 13, at 71, 74, U.N. Doc. A/810 (1948) ("Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment. . . . Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity."); RYSZARD CHOLEWINSKI, MIGRANT WORKERS IN INTERNATIONAL HUMAN RIGHTS LAW: THEIR PROTECTION IN COUNTRIES OF EMPLOYMENT (1997); Neil A. Friedman, Comment, A Human Rights Approach to the Labor Rights of Undocumented Workers, 74 CAL. L. REV. 1715 (1986); Berta Esperanza Hernandez-Truyol & Kimberly A. Johns, Global Rights, Local Wrongs, and Legal Fixes: An International Human Rights Critique of Immigration and Welfare "Reform," 71 S. CAL. L. REV. 547, 549, 587 (1998) (arguing that the right to work embodies a right to fair working conditions, fair wages, and protection trom unemployment, and describing the juxtaposition of the two narratives of immigration to the United States as welcomeness and exclusion); see also Alan A. Stevens, Comment Give Me Your Tired, Your Poor, Your Destitute Laborers Ready to Be Exploited: The Failure of International Human Rights Law to Protect the Rights of Illegal Aliens in American Jurisprudence, 14 EMORY INT'L L. REV. 405 (2000) (critiquing the failure both of international human rights laws and of employment antidiscrimination laws to protect undocumented workers from abuse); Fang-Lian Liao, Note, Illegal Immigrants in Garment Sweatshops: The Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, 3 SW. J.L. & TRADE AM. 487 (1996). Liao argues that illegal immigrants in sweatshops should be considered enslaved pursuant to the prohibition against slavery and servitude found in Article 4 of the Universal Declaration of Human Rights "when they have no choice but to work in atrocious conditions" or to be "reported to the authorities and deported." Id. at 502. "Sweatshops are breeding grounds for the enslavement of human beings, and as such, those individuals who condone or turn a blind eye to sweatshops are promoting slavery." Id.
245. See, e.g., International Covenant on Economic, Social and Cultural Rights, Jan. 3, 1976, art. 6, 993 U.N.T.S. 3 ("The States Parties to the present Covenant recognize the right to work."); Universal Declaration of Human Rights, art. 23, G.A. Res. 217A (III), U.M. GAOR, 3d Sess., Supp. No. 13, at 71, 74, U.N. Doc. A/810 (1948) ("Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment. . . . Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity."); RYSZARD CHOLEWINSKI, MIGRANT WORKERS IN INTERNATIONAL HUMAN RIGHTS LAW: THEIR PROTECTION IN COUNTRIES OF EMPLOYMENT (1997); Neil A. Friedman, Comment, A Human Rights Approach to the Labor Rights of Undocumented Workers, 74 CAL. L. REV. 1715 (1986); Berta Esperanza Hernandez-Truyol & Kimberly A. Johns, Global Rights, Local Wrongs, and Legal Fixes: An International Human Rights Critique of Immigration and Welfare "Reform," 71 S. CAL. L. REV. 547, 549, 587 (1998) (arguing that the right to work embodies a right to fair working conditions, fair wages, and protection trom unemployment, and describing the juxtaposition of the two narratives of immigration to the United States as welcomeness and exclusion); see also Alan A. Stevens, Comment Give Me Your Tired, Your Poor, Your Destitute Laborers Ready to Be Exploited: The Failure of International Human Rights Law to Protect the Rights of Illegal Aliens in American Jurisprudence, 14 EMORY INT'L L. REV. 405 (2000) (critiquing the failure both of international human rights laws and of employment antidiscrimination laws to protect undocumented workers from abuse); Fang-Lian Liao, Note, Illegal Immigrants in Garment Sweatshops: The Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, 3 SW. J.L. & TRADE AM. 487 (1996). Liao argues that illegal immigrants in sweatshops should be considered enslaved pursuant to the prohibition against slavery and servitude found in Article 4 of the Universal Declaration of Human Rights "when they have no choice but to work in atrocious conditions" or to be "reported to the authorities and deported." Id. at 502. "Sweatshops are breeding grounds for the enslavement of human beings, and as such, those individuals who condone or turn a blind eye to sweatshops are promoting slavery." Id.
246. See, e.g., International Covenant on Economic, Social and Cultural Rights, Jan. 3, 1976, art. 6, 993 U.N.T.S. 3 ("The States Parties to the present Covenant recognize the right to work."); Universal Declaration of Human Rights, art. 23, G.A. Res. 217A (III), U.M. GAOR, 3d Sess., Supp. No. 13, at 71, 74, U.N. Doc. A/810 (1948) ("Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment. . . . Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity."); RYSZARD CHOLEWINSKI, MIGRANT WORKERS IN INTERNATIONAL HUMAN RIGHTS LAW: THEIR PROTECTION IN COUNTRIES OF EMPLOYMENT (1997); Neil A. Friedman, Comment, A Human Rights Approach to the Labor Rights of Undocumented Workers, 74 CAL. L. REV. 1715 (1986); Berta Esperanza Hernandez-Truyol & Kimberly A. Johns, Global Rights, Local Wrongs, and Legal Fixes: An International Human Rights Critique of Immigration and Welfare "Reform," 71 S. CAL. L. REV. 547, 549, 587 (1998) (arguing that the right to work embodies a right to fair working conditions, fair wages, and protection trom unemployment, and describing the juxtaposition of the two narratives of immigration to the United States as welcomeness and exclusion); see also Alan A. Stevens, Comment Give Me Your Tired, Your Poor, Your Destitute Laborers Ready to Be Exploited: The Failure of International Human Rights Law to Protect the Rights of Illegal Aliens in American Jurisprudence, 14 EMORY INT'L L. REV. 405 (2000) (critiquing the failure both of international human rights laws and of employment antidiscrimination laws to protect undocumented workers from abuse); Fang-Lian Liao, Note, Illegal Immigrants in Garment Sweatshops: The Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, 3 SW. J.L. & TRADE AM. 487 (1996). Liao argues that illegal immigrants in sweatshops should be considered enslaved pursuant to the prohibition against slavery and servitude found in Article 4 of the Universal Declaration of Human Rights "when they have no choice but to work in atrocious conditions" or to be "reported to the authorities and deported." Id. at 502. "Sweatshops are breeding grounds for the enslavement of human beings, and as such, those individuals who condone or turn a blind eye to sweatshops are promoting slavery." Id.
247. See, e.g., International Covenant on Economic, Social and Cultural Rights, Jan. 3, 1976, art. 6, 993 U.N.T.S. 3 ("The States Parties to the present Covenant recognize the right to work."); Universal Declaration of Human Rights, art. 23, G.A. Res. 217A (III), U.M. GAOR, 3d Sess., Supp. No. 13, at 71, 74, U.N. Doc. A/810 (1948) ("Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment. . . . Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity."); RYSZARD CHOLEWINSKI, MIGRANT WORKERS IN INTERNATIONAL HUMAN RIGHTS LAW: THEIR PROTECTION IN COUNTRIES OF EMPLOYMENT (1997); Neil A. Friedman, Comment, A Human Rights Approach to the Labor Rights of Undocumented Workers, 74 CAL. L. REV. 1715 (1986); Berta Esperanza Hernandez-Truyol & Kimberly A. Johns, Global Rights, Local Wrongs, and Legal Fixes: An International Human Rights Critique of Immigration and Welfare "Reform," 71 S. CAL. L. REV. 547, 549, 587 (1998) (arguing that the right to work embodies a right to fair working conditions, fair wages, and protection trom unemployment, and describing the juxtaposition of the two narratives of immigration to the United States as welcomeness and exclusion); see also Alan A. Stevens, Comment Give Me Your Tired, Your Poor, Your Destitute Laborers Ready to Be Exploited: The Failure of International Human Rights Law to Protect the Rights of Illegal Aliens in American Jurisprudence, 14 EMORY INT'L L. REV. 405 (2000) (critiquing the failure both of international human rights laws and of employment antidiscrimination laws to protect undocumented workers from abuse); Fang-Lian Liao, Note, Illegal Immigrants in Garment Sweatshops: The Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, 3 SW. J.L. & TRADE AM. 487 (1996). Liao argues that illegal immigrants in sweatshops should be considered enslaved pursuant to the prohibition against slavery and servitude found in Article 4 of the Universal Declaration of Human Rights "when they have no choice but to work in atrocious conditions" or to be "reported to the authorities and deported." Id. at 502. "Sweatshops are breeding grounds for the enslavement of human beings, and as such, those individuals who condone or turn a blind eye to sweatshops are promoting slavery." Id.
248. See, e.g., International Covenant on Economic, Social and Cultural Rights, Jan. 3, 1976, art. 6, 993 U.N.T.S. 3 ("The States Parties to the present Covenant recognize the right to work."); Universal Declaration of Human Rights, art. 23, G.A. Res. 217A (III), U.M. GAOR, 3d Sess., Supp. No. 13, at 71, 74, U.N. Doc. A/810 (1948) ("Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment. . . . Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity."); RYSZARD CHOLEWINSKI, MIGRANT WORKERS IN INTERNATIONAL HUMAN RIGHTS LAW: THEIR PROTECTION IN COUNTRIES OF EMPLOYMENT (1997); Neil A. Friedman, Comment, A Human Rights Approach to the Labor Rights of Undocumented Workers, 74 CAL. L. REV. 1715 (1986); Berta Esperanza Hernandez-Truyol & Kimberly A. Johns, Global Rights, Local Wrongs, and Legal Fixes: An International Human Rights Critique of Immigration and Welfare "Reform," 71 S. CAL. L. REV. 547, 549, 587 (1998) (arguing that the right to work embodies a right to fair working conditions, fair wages, and protection trom unemployment, and describing the juxtaposition of the two narratives of immigration to the United States as welcomeness and exclusion); see also Alan A. Stevens, Comment Give Me Your Tired, Your Poor, Your Destitute Laborers Ready to Be Exploited: The Failure of International Human Rights Law to Protect the Rights of Illegal Aliens in American Jurisprudence, 14 EMORY INT'L L. REV. 405 (2000) (critiquing the failure both of international human rights laws and of employment antidiscrimination laws to protect undocumented workers from abuse); Fang-Lian Liao, Note, Illegal Immigrants in Garment Sweatshops: The Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, 3 SW. J.L. & TRADE AM. 487 (1996). Liao argues that illegal immigrants in sweatshops should be considered enslaved pursuant to the prohibition against slavery and servitude found in Article 4 of the Universal Declaration of Human Rights "when they have no choice but to work in atrocious conditions" or to be "reported to the authorities and deported." Id. at 502. "Sweatshops are breeding grounds for the enslavement of human beings, and as such, those individuals who condone or turn a blind eye to sweatshops are promoting slavery." Id.
249. Statement of Southern U.S. Bishops on J.P. Stevens Company, Seton Hall University Institute on Work, http://www.shu.edu/programs/work/CathTch.html (last visited Mar. 12, 2001).
250. See David L. Gregory, The Right to Unionize as a Fundamental Human and Civil Right, 9 MISS. C. L. REV. 135, 149 (1988).
251. C. John Cicero, The Classroom as Shop Floor: Images of Work and the Study of Labor Law, 20 VT. L. REV. 117, 124 (1995).
252. James A. Gross, The Broken Promises of the National Labor Relations Act and the Occupational Safety and Health Act: Conflicting Values and Conceptions of Rights and Justice, 73 CHI.-KENT L. REV. 351, 379 (1998) ("The primary purpose of a national labor policy should be to find a moral basis for achieving human dignity, solidarity, and justice for all parties at the workplace and in the larger communities affected by what goes on at the workplace."). As Professor Vicki Schultz explains, "Just as paid work has been a crucial component of citizenship, it has also been an important building block for community. . . . The rhythms, social relationships, and institutions of work provide important foundations for community stability." Vicki Schultz, Life's Work, 100 COLUM. L. REV. 1881, 1888 (2000).
253. James A. Gross, The Broken Promises of the National Labor Relations Act and the Occupational Safety and Health Act: Conflicting Values and Conceptions of Rights and Justice, 73 CHI.-KENT L. REV. 351, 379 (1998) ("The primary purpose of a national labor policy should be to find a moral basis for achieving human dignity, solidarity, and justice for all parties at the workplace and in the larger communities affected by what goes on at the workplace."). As Professor Vicki Schultz explains, "Just as paid work has been a crucial component of citizenship, it has also been an important building block for community. . . . The rhythms, social relationships, and institutions of work provide important foundations for community stability." Vicki Schultz, Life's Work, 100 COLUM. L. REV. 1881, 1888 (2000).
254. Thomas C. Kohler, The Overlooked Middle, 69 CHI.-KENT L. REV. 229, 233 (1993) (citation omitted).
255. See, e.g., Schultz, supra note 221, at 1928-29 (suggesting that paid work is "the only institution that can be sufficiently widely distributed to provide a stable foundation for a democratic order"). According to Schultz, work is one of the only institutions in which diverse groups of people can gain respect for one another through shared experiences. Id. at 1885.
256. See Gross, supra note 221, at 351-52 (arguing that protecting the right of workers to participate in decisions affecting their workplace lives is essential to democracy, and critiquing the NLRA and OSHA, explaining why each has failed to live up to its initial promises). In analyzing the underlying values of the NLRA when enacted, Gross comments that "[t]he NLRA . . . confirmed that a fully human life requires . . . rights to meaningful work; . . . to pay sufficient to ensure a life of human dignity for a worker and his or her family; to form and join labor organizations; and to participate in the workplace decisions affecting their lives." Id. at 377.
257. See Karl E. Klare, Judicial Deradicalization of the Wagner Act and the Origins of Modern Legal Consciousness, 1937-1941, 62 MINN. L. REV. 265 (1978).
258. Raskin, supra note 95, at 1073. Raskin describes the state of working conditions on the eve of the NLRA's passage: [A] bare fifteen percent of the private sector work force belonged to a union. In those days when the doctrine of employment at-will was king and unions had no legal standing on corporate property, employers resisting union drives could simply fire pro-union workers, lock labor organizers out of the corporate premises, threaten the work force, refuse to bargain, and if worse came to worst, drive the workers out on strike and hire permanent replacements. Leaving aside the ready option of criminal violence against insubordinate employees, employers had at their disposal a full panoply of effective union-busting techniques completely lawful within the regime of contract and property rights. Id. at 1067-68 (citations omitted).
259. See Klare, supra note 225. Cicero explains that beginning with NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333 (1938), the Supreme Court "sent a reassuring message to industrialists that the order of the workplace had not changed radically and that the prerogatives of production and ownership remained intact." Cicero, supra note 215, at 76. According to Cicero, "Although section 13 of LMRA explicitly provides that the law should not be 'construed so as either to interfere with or impede or diminish in any way the right to strike,' the Mackay Radio Court relied on unspoken but preexisting premises concerning 'inherent' employer rights to do exactly that." Id.
260. Charles B. Craver, Why Labor Unions Must [and Can] Survive, 1 U. PA. J. LAB. & EMP. L. 15, 16 (1998).
261. Id.
262. Id.
263. See Klare, supra note 225, at 291. Klare concludes that the indeterminacy of the text and legislative history of the Act, the political circumstances surrounding its passage, the complexity and fluidity of working-class attitudes toward collective bargaining and labor law reform during the period, and the hostility and disobedience of the business community make it clear that there was no coherent or agreed-upon fund of ideas or principles available as a conclusive guide in interpreting the Act. The statute was a texture of openness and divergency, not a crystallization of consensus or a signpost indicating a solitary direction for future development. Id.; Weiler, supra note 101, at 1779-81 (documenting the dramatic increases in employer violations of the NLRA). Weiler concluded that "[s]uch a widespread pattern of employer intimidation has ramifications that reach far beyond the units in which discharges actually occur. It fosters an environment in which employees will take very seriously even subtle warnings about the consequences of joining a union." Id. at 1781.
264. See Gross, supra note 221, at 358 (pointing to the Reagan (and subsequent Bush) administration's anti-regulatory ideology and noting that "a presidential administration can make or change agency policy without legislative action through its power to appoint agency members"); Klare, supra note 225; see also JAMES B. ATLESON, VALUES AND ASSUMPTIONS IN AMERICAN LABOR LAW 4 (1983). Atelson argues that courts have relied upon "unexamined values and unarticulated assumptions" to construe narrowly workers' rights under the NLRA. Id. For example, notwithstanding section 7's unconditional grant to employees of the right to engage in collective action, unauthorized strikes are either prohibited or limited to a narrow set of circumstances. Id. According to Atleson, this dissonance between the statute's broad language and "labor law" as interpreted by the courts can be explained by the "unexpressed assumptions that production must be maintained and that the integrity of the bargaining system must be protected even from expressions of employee outrage." Id.
265. See Gross, supra note 221, at 360-63 (while it has been clear since enactment of the NLRA that the remedies available were insufficient to achieve the Act's goals, Congress has failed to enact stronger sanctions for violations of the NLRA).
266. See Weiler, supra note 101, at 1774 (stating that the remedies available under the NLRA do not and cannot "stem the resulting tide of abuses" and advocating major reform of the representation system); see also Raskin, supra note 95, at 1085-87. Raskin also advocates radical changes in the remedial arsenal for violations of the NLRA. For exampie, Raskin calls upon Congress to utilize a rebuttable presumption that any employer discharge of workers during an organizing campaign is unlawful and therefore barred. Id. at 1085. Raskin continues his legislative call for action by stating that "to fortify this system of burden shifting, Congress should amend the Racketeer Influenced and Corrupt Organizations Act (RICO) to make violation of section 8(a)(3) of the Wagner Act a predicate act sufficient to trigger the RICO statute." Id. at 1086. According to Raskin, This change would classify two or more serious unfair labor practices as a pattern of "racketeering activity," giving U.S. Attorneys the power to prosecute offenders, seize property "acquired or maintained" in violation of law, and invoke RICO's forfeiture provisions. It also would give "any person injured" as a result of the business' pattern of unfair labor practices, such as workers illegally fired, an action for treble damages. Id. (citations omitted). In the immigration context, corporations and individuals providing janitorial and custodial services (unsuccessfully) attempted to utilize the RICO statute to punish a competitor company for an alleged practice of hiring undocumented workers in violation of the INA. See Sys. Mgmt., Inc. v. Loiselle, 91 F. Supp. 2d 401 (D. Mass. 2000); see also infra note 237.
267. See Gordon, supra note 65, at 414-15, 424; see also RICHARD B. FREEMAN & JAMES MEDOFF, WHAT DO UNIONS Do? 221-45 (1984).
268. See, e.g., Cicero, supra note 220, at 132-33.
269. See, e.g., Michael Bologna, AFL-CIO: AFL-CIO Pressing Gore to Address Protection of Immigrants in Speech During Convention, DAILY LAB. REP., Aug. 3, 2000, at AA-1 (reporting that the AFL-CIO has called for the end of employer sanctions and full workplace rights for all workers, regardless of immigration status and is preparing a white paper report on national immigration policy and the rights of immigrant workers). It has been reported that UNITE now negotiates contracts that recognize the illegal status of some workers and afford them some protection from the INS. Recent contracts negotiated by UNITE have included clauses requiring the employer to bar an INS raid unless the agents have a search warrant, obligating the company to notify the union if it learns of an upcoming raid, and specifying that former employees who are rehired with new papers (or new names) after their original documents are found to be false, retain their seniority and resume their old pay levels. See Uchitelle, supra note 59. However, in a recent case in which an employer attempted to shield an undocumented worker from the INS the Second Circuit upheld the employer's conviction for harboring an illegal alien as prohibited by section 274(a)(1)(A)(iii) of the INA. See United States v. Kim, 193 F.3d 567 (2d Cir. 1999) (holding that an employer is illegally harboring an alien if he knowingly or recklessly disregards an employee's status as an undocumented worker or helps her remain in his employ undetected by the INS). But see Sys. Mgmt., Inc., 91 F. Supp. at 401 (holding that RICO claims could not be premised on employer's hiring of undocumented workers absent actual knowledge by the employer that workers were brought into the country in violation of section 247(a)(3)(B) of the INA). Similarly, in a recent class action lawsuit workers with lawful immigration status charged two packing houses as well as an employment agency that refers workers to the fruit firms with violating RICO and a state anti-conspiracy law by "knowingly employing illegal aliens," in an effort to depress hourly wages for all workers. Mendoza v. Zirkle Fruit Co., No CS-00-3024-FVS, 2000 WL 33225470, at *1, *4 (E.D. Wash. Sept. 27, 2000). While the district court dismissed the lawsuit, finding the damages alleged to be too speculative, the court found that the workers properly alleged a violation of federal immigration laws actionable under RICO. Id. at *1.
270. See Immigration: For the First Time, Teamsters Call for New Direction on Immigration Policy, DAILY LAB. REP., Aug. 24, 2000, at A-10. According to Teamsters president James P. Hoffa, immigrant workers are "easy pickings for exploitation. . . . Under the current system, workers who want to join a union are intimidated with the threat of investigation by the [INS]." Id.
271. See Richard A. Boswell, Restrictions on Non-Citizens' Access to Public Benefits: Flawed Premise, Unnecessary Response, 42 UCLA L. REV. 1475, 1475-76 (1995) ("An additional and overarching question that punctuates this discussion is the degree to which important moral issues have been left out of these debates on United States immigration policy."). As expressed by Professor Boswell: The manner in which immigration policy is discussed and defined determines the very nature of who we are as a nation. It demonstrates whether we are compassionate or punitive, and whether we are swayed by appeals to passion and prejudice, or susceptible to a more reasoned decisionmaking. It is only fitting then that questions involving immigration be addressed in moral terms. Id. at 1478; see also Bosniak, supra note 143 (questioning why progressives have voiced such little concern over the plight of the undocumented members of American society).
272. Gerald P. López, Undocumented Mexican Migration: In Search of a Just Immigration Law and Policy, 28 UCLA L. REV. 615, 696 (1981).
273. See Lynda V. Mapes, Illegal, but Needed, Workers Gaining Ground, SEATTLE TIMES, June 18, 2000, at A1. Mapes describes how most apple growers in Washington State glance at workers' immigration papers and merely nod. "Then, in the dead of winter, they ship their payroll forms to the Social Security Administration. Long after the harvest is over, the letters come flooding back" instructing the growers to recheck the workers' immigration documents. Id.
274. See id.
275. See id.
276. See id.
277. It has been reported that undocumented workers are no longer fearful of being deported and are comfortable asserting their workplace rights. According to a Latino organizer for a carpenter's union. "A lot of immigrants are saying if they are [going to] get deported, at least they are going to get deported with dignity." Id.
278. FOr example, President Clinton signed into law the American Competitiveness in the 21st Century Act, Pub. L. No. 106-313, § 102, 114 Stat. 1251, 1251-52 (2000). The legislation increases the number of temporary employment-based visas available per year.
279. See, e.g., Agricultural Job Opportunity Benefits and Security Act, S. 1814, 106th Cong. (1999); Agricultural Opportunities Act, H.R. 4548, 106th Cong. (1999). It has been estimated that over one million of the estimated six million
280. For example, Title I of the Agricultural Job Opportunity Benefits and Security Act, S. 1814, 106th Cong. (1999), proposed allowing undocumented workers to gain legal status in certain circumstances. The bill sought to enable undocumented workers who worked at least 150 days as agricultural workers within the past year to gain temporary status as nonimmigrant workers. Id. § 101(a)(1)(A). In order to maintain this temporary status and to be eligible for adjustment to permanent resident status after five years, the farmworkers were required to work at least 180 workdays in each of those years. Id. § 101(b)(1). In order to be eligible for adjustment to permanent residency, the bill also required that workers remain outside the United States for at least two months per year during the temporary residence period (with an exception for those with United States citizen children). See id. § 101(a)(2). As pointed out by Cecilia Muñoz, Vice President of the National Council of La Raza ("NCLR"), when the bill was under consideration: The lack of available work shown by recent surveys means that many "adjustment" guestworkers would never acquire enough work in each of 5 years to qualify to apply for immigration status. The proposal would give employers extraordinary control over workers' economic status and immigration status. Workers would be desperate to comply with the difficult tasks of securing and proving 180 days of farmwork each year to remain in the program. Consequently, many will be too afraid of being fired and other employer reprisals to demand higher wages or better working conditions, or seek to enforce the law. Senate Conducts Hearing on Proposed Overhaul of Farmworker Program, 77 INTERPRETER RELEASES 599, 600 (2000). For an overview of the plight of migrant farmworkers, see Lori Nessel & Kevin Ryan, Migrant Farmworkers, Homeless and Runaway Youth: Challenging the Barriers to Inclusion, 13 LAW & INEQ. 99 (1994) .
281. For example, Title I of the Agricultural Job Opportunity Benefits and Security Act, S. 1814, 106th Cong. (1999), proposed allowing undocumented workers to gain legal status in certain circumstances. The bill sought to enable undocumented workers who worked at least 150 days as agricultural workers within the past year to gain temporary status as nonimmigrant workers. Id. § 101(a)(1)(A). In order to maintain this temporary status and to be eligible for adjustment to permanent resident status after five years, the farmworkers were required to work at least 180 workdays in each of those years. Id. § 101(b)(1). In order to be eligible for adjustment to permanent residency, the bill also required that workers remain outside the United States for at least two months per year during the temporary residence period (with an exception for those with United States citizen children). See id. § 101(a)(2). As pointed out by Cecilia Muñoz, Vice President of the National Council of La Raza ("NCLR"), when the bill was under consideration: The lack of available work shown by recent surveys means that many "adjustment" guestworkers would never acquire enough work in each of 5 years to qualify to apply for immigration status. The proposal would give employers extraordinary control over workers' economic status and immigration status. Workers would be desperate to comply with the difficult tasks of securing and proving 180 days of farmwork each year to remain in the program. Consequently, many will be too afraid of being fired and other employer reprisals to demand higher wages or better working conditions, or seek to enforce the law. Senate Conducts Hearing on Proposed Overhaul of Farmworker Program, 77 INTERPRETER RELEASES 599, 600 (2000). For an overview of the plight of migrant farmworkers, see Lori Nessel & Kevin Ryan, Migrant Farmworkers, Homeless and Runaway Youth: Challenging the Barriers to Inclusion, 13 LAW & INEQ. 99 (1994) .
282. See, e.g., PETER H. SCHUCK & ROGERS M. SMITH, CITIZENSHIP WITHOUT CONSENT; ILLEGAL ALIENS IN THE AMERICAN POLITY (1985); see also Johnson, supra note 22. Johnson argues th at the noncitizen population in the United States is composed of people who live and work on the margins. While contributing to the economy, they are blamed by some for a litany of society's woes. Barred by law from the political process, non-citizens have limited ability to resist the attacks, protect their interests, and improve their lives. Id. at 1181. Johnson further warns that "[t]he continued disenfranchisement of so large a group of persons physically present" and subject to the nation's laws threatens "anything approaching an idealistic conception of democracy." Id. at 1220.
283. See SCHUCK & SMITH, supra note 249, at 5 (arguing for "a reinterpretation of the Fourteenth Amendment's Citizenship Clause to make birthright citizenship for the children of illegal and temporary visitor aliens a matter of congressional choice rather than of constitutional prescription").
284. Joseph H. Carens, Aliens and Citizens: The Case for Open Borders, 49 REV. POL. 251 (1987) (rejecting sovereignty as a basis for excluding foreigners and relying upon Rawlsian, Nozickean, and utilitarian political theory to construct arguments for open borders); Roger Nett, The Civil Right We Are Not Ready for: The Right of Free Movement of People on the Face of the Earth, 81 ETHICS 212 (1971). Nett argues that the functional set of rights recognized by law ought to be expanded to include the historically accepted de facto right to free movement. This right to free movement would encompass both material dimensions ("the right of people who are trapped in overcrowded areas . . . to go where resources are [available]") and political dimensions ("the right of people to move away from oppression, persecution, unfair restriction, or even disagreeable social environments and social orders"). Id. at 218-19; see also R. George Wright, Federal Immigration Law and the Case for Open Entry, 27 LOY. L.A. L. REV. 1265 (1994).
285. Joseph H. Carens, Aliens and Citizens: The Case for Open Borders, 49 REV. POL. 251 (1987) (rejecting sovereignty as a basis for excluding foreigners and relying upon Rawlsian, Nozickean, and utilitarian political theory to construct arguments for open borders); Roger Nett, The Civil Right We Are Not Ready for: The Right of Free Movement of People on the Face of the Earth, 81 ETHICS 212 (1971). Nett argues that the functional set of rights recognized by law ought to be expanded to include the historically accepted de facto right to free movement. This right to free movement would encompass both material dimensions ("the right of people who are trapped in overcrowded areas . . . to go where resources are [available]") and political dimensions ("the right of people to move away from oppression, persecution, unfair restriction, or even disagreeable social environments and social orders"). Id. at 218-19; see also R. George Wright, Federal Immigration Law and the Case for Open Entry, 27 LOY. L.A. L. REV. 1265 (1994).
286. Joseph H. Carens, Aliens and Citizens: The Case for Open Borders, 49 REV. POL. 251 (1987) (rejecting sovereignty as a basis for excluding foreigners and relying upon Rawlsian, Nozickean, and utilitarian political theory to construct arguments for open borders); Roger Nett, The Civil Right We Are Not Ready for: The Right of Free Movement of People on the Face of the Earth, 81 ETHICS 212 (1971). Nett argues that the functional set of rights recognized by law ought to be expanded to include the historically accepted de facto right to free movement. This right to free movement would encompass both material dimensions ("the right of people who are trapped in overcrowded areas . . . to go where resources are [available]") and political dimensions ("the right of people to move away from oppression, persecution, unfair restriction, or even disagreeable social environments and social orders"). Id. at 218-19; see also R. George Wright, Federal Immigration Law and the Case for Open Entry, 27 LOY. L.A. L. REV. 1265 (1994).
287. Bosniak, supra note 22, at 1004-05. But see T. Alexander Aleinikoff, Aliens, Due Process and "Community Ties": A Response to Martin, 44 U. PITT L. REV. 237 (1983) (arguing that a reliance theory focusing on the stake the alien has created and been permitted to create may be a plausible basis for distinguishing among aliens for due process purposes, but would not be an appropriate measure of membership). Aleinikoff advances a procedural due process test based on community ties: "[W]hat we 'owe' persons in terms of process is better understood as a function of what we are taking from them (community ties) than our relationship to them (membership in a national community)." Id. at 244.
288. See. e.g., Gerald L. Neuman, Aliens as Outlaws: Government Sendees, Proposition 187, and the Structure of Equal Protection Doctrine, 42 UCLA L. REV. 1425 (1995). In examining the ways in which undocumented immigrants are reduced to non-persons, or "outlaw[s] outside the protection of the legal system," Professor Neuman explains that the pejorative term "illegal alien" implies that "the alien's presence can give rise to no legal duties toward him because he should not be here in the first place. Like an illegal contract that creates no obligation, duties toward the alien are void or voidable." Id. at 1441 (citations omitted).
289. See Johnson, supra note 22, at 1220 (articulating reasons why the undocumented should be represented in the political process, including that most undocumented persons are contributing members of the community who work and pay taxes). According to Johnson, undocumented persons make up a part of society and should have input into the political process, "just as they influence the economy through their labors and consumption." Id. at 1220. Johnson also suggests that empowerment of the invisible "illegal alien" population might lead to greater congressional and bureaucratic accountability. Id.
290. In Forbidden Workers: Illegal Chinese Immigrants and American Labor, Peter Kwong documents the myriad ways in which the employer sanctions legislation has devastated labor rights for all workers. He concludes that linking immigration with labor enforcement does not work and calls for an end to INS enforcement in the workplace. According to Kwong: Immigration policy, then, deals with stopping aliens from entering the country illegally and should be limited to that. The punitive response of hunting down illegals once they are already in the country only forces them to retreat further underground, where they are even more vulnerable to unscrupulous employers and subjected to even stronger control by . . . organized crime. The end result is the further degrading of the value of American labor. KWONG, supra note 62, at 181.
291. Criminalizing the immigrant and her dreams has been described as a four-step process: "problematize, demonize, dehumanize, then criminalize." Hing, supra note 123, at 85.
292. See id. at 96 ("Recognizing that the overzealous exercise of sovereign border powers results in a system that punishes people for moving, for dreaming, and for following historical patterns of recruitment, demands reflection").