Patients without borders: Extralegal deportation by hospitals

University of Cincinnati Law Review

Volumn 78, Issue 2, 2009, Pages 657-698

  Johnson, Kit ^a  

^a UNIVERSITY OF NORTH DAKOTA   (United States)

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EID: 77952259750     PISSN: 00096881     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (326)

1. Cochran v. State, 62 Ga. 731,732 (Ga. 1879).
2. Such migrants are often referred to as "illegal aliens."
3. STEPHEN H. LEGOMSKY, IMMIGRATION AND REFUGEE LAW AND POLICY 1193 (4th ed. 2005).
4. MICHAEL HOEFER, NANCY RYTINA, & BRYAN C. BAKER,ESTIMATES OF THE UNDOCUMENTED POPULATION RESIDING IN THE UNITED STATES: JANUARY 2009, POPULATION ESTIMATES (2010), www.dhs.gov/xlibrary/assets/statistics/publications/ois-ill- pe-2009.pdf. Similar estimates have fluctuated above and below U million for the past five years.
5. See id. at 1;
6. STEVEN A. CAMAROTA, CTR. FOR IMMIGRATION STUDIES, BACKGROUNDER: IMMIGRANTS IN THE UNITED STATES, 2007: A PROFILE OF AMERICA'S FOREIGN-BORN POPULATION 2 (2007) (estimating undocumented population to be 11.3 million as of March 2007), http://www.cis.org/articles/2007/back1007.pdf;
7. JEFFREY S. PASSEL, PEW HISPANIC CTR, ESTIMATES OF THE SIZE AND CHARACTERISTICS OF THE UNDOCUMENTED POPULATION 1 (2005) (estimating undocumented population to be just under 11 million as of March 2005), http://pewhispanic. org/files/reports/44.pdf.
8. Borderstories, Fence Jumpers, http://borderstories.org/index.php/san- diego-fence-jumpers.html (last visited Feb. 6, 2009).
9. Id.
10. Id.
11. See, e.g.. Design Kitchen & Baths v. Lagos, 882 A.2d 817 (Md. 2005) (addressing workerscompensation claims made by Diego E. Lagos, an undocumented migrant who suffered a hand injury while operating a saw during his employment with Design Kitchen & Bath. The injury required immediate medical attention, including multiple surgeries.).
12. See, e.g., Deborah Sontag, Deported, by U.S. Hospitals, N.Y. TIMES, Aug. 3, 2008, at A1 [hereinafter Sontag I] (detailing the plight of Luis Alberto Jiménez, discussed in detail, infra Part II.D).
13. See, e.g., Deborah Sontag, Deported in Coma, Saved Back in U.S., N.Y. TIMES, Nov. 9, 2008, at A1 [hereinafter Sontag II] (reporting story of Kong Fong Yu, an undocumented migrant from China who suffered a stroke in May 2007, and whose long-term care has been the subject of debate at New York Downtown Hospital).
14. See Alan Zarembo & Anna Gorman, Dialysis dilemma: Who gets free care?, L.A. TIMES, Oct. 29, 2008, at A1 (reporting story of Marguerita Toribio, an undocumented migrant from Mexico who has received life-saving dialysis treatment at a U.S. hospital roughly 2,000 times over the last 17 years);
15. id. (undocumented migrants account for about 1,350 of the 61,000 people on dialysis in California and 52 of the 1,912 kidney transplants conducted in California during 2007);
16. Sontag I, supra note 9 (reporting that six patients who arrived at Martin Memorial Hospital in Florida with renal failure are now being treated with ongoing dialysis).
17. See Zarembo & Gorman, supra note 11 ("[D]ialysis stands out because it is often a lifetime commitment. The investment in a single patient over time can easily top $1 million.")
18. Svetlana Lebedinski, EMTALA: Treatment of Undocumented Aliens And The Financial Burden It Places On Hospitals, 7 J.L. SOC'Y 146, 161 (2005) ("[A]s a practical matter... since hospitals must accept federal and state sponsored health insurance programs to sustain financial viability... EMTALA becomes a requirement for all hospitals with an emergency department....").
19. 42 U.S.C. § 1395dd(a) (2006) (emergency medical treatment must be provided to "any individual").
20. Id.
21. Id. § 1395dd(b)(1)(A).
22. Id. § 1396b(v) ("Medical assistance to aliens not lawfully admitted for permanent residence").
23. Pub. L. No.108-173, § 1011, 117 Stat. 2066 (2003). Hospitals gained access to Section 1011 funds in 2005.
24. See OIG Issues 2009 Work Plan, 18 HEALTHCARE REGISTRATION, Dec. 2008, at 1.
25. Medicare Prescription Drug, Improvement, and Modernization Act of 2003 § 1011 (providing funding only through fiscal year 2008);
26. see also Sontag II, supra note 10.
27. See Borderstories.org, supra note 5.
28. Id.
29. Id. Arrowhead Regional Medical Center, the county hospital in Colton, California, faces similar reimbursement woes. About 5% of all emergency room patients at Arrowhead are undocumented. The hospital has incurred some $18 million this year for the care of those patients and has been reimbursed just $5 million from the federal government.
30. See Stephen Wall, Illegal migrants costly to San Bernardino County, SAN BERNARDINO COUNTY SUN, Feb. 20, 2010.
31. See 42 U.S.C. § 1320b-7(a)(1), (d), (f) (2006).
32. 42 C.F.R. § 482.43(d) (2009).
33. Revisions to Conditions of Participation for Hospitals, 59 Fed. Reg. 64,149 (Dec. 13, 1994).
34. See Montejo v. Martin Memorial Med. Ctr, Inc., 874 So.2d 654, 657, 657 (Fla. Dist Ct. App. 2004) [hereinafter Montejo I] (noting a hospital's requirement that "the discharge plan identify the next appropriate level of care required by the patient, identify by name and address the receiving facility, provide the name of the supervising medical doctor who will take responsibility for the patient's care at the receiving facility, and confirm that the doctor will provide the patient with the identified appropriate level of care.").
35. See Sontag L supra note 9 (reporting expenditures of $20 million a year by California for the long-term care of undocumented migrants);
36. see also Zarembo & Gorman, supra note 11 (reporting California paid some $51 million for the dialysis treatment of 1,350 undocumented migrants in the year 2007).
37. See Alexandra Zavis & Anna Gorman, State may end aid for new legal immigrants, L.A. TIMES, Feb. 17, 2010, at A1.
38. See Sontag I, supra note 9.
39. See Zarembo & Gorman, supra note 11 (noting that in Houston "the public hospital district uses local taxes to pay for routine dialysis even though the state Medicaid program does not.")
40. Sontag I, supra note 9 (describing a hospital's purchase of a $30,000 flight on an air ambulance for a patient who had cost the hospital over a million dollars).
41. Sontag I, supra note 9;
42. Sontag II, supra note 10.
43. Sontag I, supra note 9.
44. Zarembo & Gorman, supra note 11.
45. Sontag I, supra note 9.
46. Id.
47. Id.
48. MexCare, http://mexcare.com/ (last visited Feb. 6, 2009).
49. Press Release, MexCare, The New York Times gets it wrong!, http://mexcare.com/pressRelease-MexCare.html (last visited Mar. 7, 2010).
50. Id.
51. Id.
52. MexCare provides only cursory answers to these questions with statements such as, "Your discharge will be determined by your condition, the doctor and the services you require."
53. See Mexcare, Frequently Asked Questions, http://mexcare.com/faq-MexCare. html (last visited Mar. 7, 2010) (follow "Will I be discharged before I am ready and well?" hyperlink).
54. See, e.g., Sontag II, supra note 10 (quoting one hospital administrator as saying, "We're trying to be good stewards of the resources we have.").
55. See 8 U.S.C. § 1101(a)(42) (2006) (defining "refugee" for purposes of immigration law).
56. See id. § 1254a. Temporary Protected Status may be granted to certain individuals who are temporarily unable to safely return to their home country because of ongoing armed conflict, an environmental disaster, or other extraordinary and temporary conditions.
57. See U.S. Citizenship and Immigration Services, Temporary Protected Status http://www.uscis.gov/portal/site/uscis/menuitem. eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=848f7f2ef0745210VgnVC M100000082ca60aRCRD&vgnextchannel=848f7f2ef0745210VgnVCM100000082ca60aRCRD (last visited Feb. 20, 2009).
58. See 8 U.S.C. § 1229b(b)(2). Congress has created special exemptions to deportation for individuals who have been battered by spouses or parents who are U.S. citizens or lawful permanent residents.
59. Sontag II, supra note 10 (reporting the story of one undocumented mother who was informed by a hospital that neither she nor her U.S. citizen child had any rights and that they would repatriate her medically needy infant "with or without" her).
60. In 1996, the Immigration and Nationality Act was restructured so that "removal" proceedings (a new term) would encompass what was formerly termed "deportation" (removing noncitizens from the United States) and "exclusion" (rejecting the applications of noncitizens seeking entry into the United States).
61. See 8 U.S.C. § 1229a. Despite the shift in statutory language, most continue to use the terms deportation and removal interchangeably. In keeping with that convention, this Article uses both terms.
62. Id. § 1103(a)(1) ("The Secretary of Homeland Security shall be charged with the administration and enforcement of this chapter and all other laws relating to the immigration and naturalization of aliens.");
63. id. § 1103(a)(5) ("He shall have the power and duty to control and guard the boundaries and borders of the United States against the illegal entry of aliens....").
64. Sontag II, supra note 10.
65. Doctors Study Repatriation of Uninsured, N.Y. TIMES, Nov. 11, 2008, at A18.
66. Id. In contrast the California Medical Association voted in October 2008 to oppose the forced repatriation of patients.
67. Id.
68. Id. Notably, the AMA committee report on this issue suggested "that the overarching concern in this matter involved inappropriate discharge of patients more than immigration status specifically." AMA asks TJC for time on disruptive docs, 1 MEDICAL ETHICS ADVISOR 10 (2009).
69. Montejo I, 874 So.2d 654 (Fla. Dist. Ct App. 2004).
70. Sontag I, supra note 9.
71. Id.
72. Id.
73. Id.
74. Id.
75. Id.
76. Id.
77. Id.
78. Id.
79. Id.
80. Id.
81. See supra notes 24-26 and accompanying text.
82. Sontag I, supra note 9.
83. Id.; see also Montejo I, 874 So.2d 654, 657 (Fla. Dist Ct. App. 2004) (quoting the letter received from the public health minister in which he identified a Guatemalan doctor who was "ready to give the necessary care to Mister Luis Alberto Jimenez," indicated he would "evaluate and transfer him to the most appropriate facility for the treatment of his condition," and that the "medical treatment to be available will be without any cost to Mister Jimenez.").
84. Montejo I, 874 So.2d at 656.
85. Id.
86. Montejo v. Martin Memorial Med. Ctr., Inc., 935 So.2d 1266, 1267 & n.1 (Fla. Dist. Ct. App. 2006) [hereinafter Montejo II].
87. Id. at 1267-1268
88. Id. at 1268.
89. Id.
90. Sontag I, supra note 9.
91. Id.
92. Id.
93. Id.
94. Id.
95. Id.
96. Id.
97. Montejo 1,874 So.2d 654 (Fla. Dist. Ct App. 2004).
98. Id. at 658.
99. Id. (parenthetical in original).
100. Repatriation may also be the basis for lower-stakes administrative challenges. That is, hospitals and doctors may have to respond to complaints filed with licensing authorities arising out of repatriation efforts.
101. See Sontag II, supra note 10 (reporting that the parents of a legal immigrant who was repatriated from a Phoenix hospitals filed a detailed complaint against the hospital with the Arizona Department of Health Services).
102. U.S. CONST. amend. XIV, § 1.
103. Id.
104. See McKeensport Hosp. v. Accreditation Council for Graduate Med. Educ, 24 F.3d 519, 528 (3d Cir. 1994) ("Courts commonly hold a state agency, like a county hospital district, for example, is a state actor even though it is not engaged in actions that are traditionally the exclusive province of the state.");
105. Dunn v. Washington County Hosp., 429 F.3d 689, 692 (7th Cir. 2005) (analyzing county hospital's actions as if a state actor);
106. Beedle v. Wilson, 422 F.3d 1059, 1070 (10th Cir. 2005) ("Subsequent cases from our court have held, with relative little fanfare, that public trust and county hospitals are properly deemed state actors for § 1983 purposes.").
107. Kottmyer v. Maas, 436 F.3d 684, 688-89 (6th Cir. 2006) ("[T]he mere fact that a hospital is licensed by the state is insufficient to transform it into a state actor for purposes of section 1983");
108. Crowder v. Conlan, 740 F.2d 447 (6th Cir. 1984);
109. Ward v. St. Anthony Hosp., 476 F.2d 671 (10th Cir.1973);
110. see also Jackson v. Metro. Edison Co., 419 U.S. 345, 350 (1974) ("The mere fact that a business is subject to state regulation does not by itself convert its action into that of the State for purposes of the Fourteenth Amendment. Nor does the fact that the regulation is extensive and detailed... do so.") (footnote omitted) (citations omitted).
111. Lansing v. City of Memphis, 202 F.3d 821,828 (6th Cir. 2000).
112. Id.
113. See, e.g., id.;
114. Rockwell v. Cape Cod Hosp., 26 F.3d 254, 257 (1st Cir. 1994);
115. Harvey v. Harvey, 949 F.2d 1127 (11th Cir. 1992).
116. Woloteky v. Huhn, 960 F.2d 1331, 1335 (6th Cir. 1992) (citations omitted);
117. see also Ellison v. Garbarino, 48 F.3d 192, 195-196 (6th Cir. 1995) (finding that a private hospital, when it involuntarily committed an individual, was not a state actor).
118. Wolotsky, 960 F.2d at 1335.
119. Kia v. McIntyre, 235 F.3d 749, 756-757 (2d Cir. 2000).
120. See Pub. L. No.414, 63 Stat. 163 (1952) (codified as amended in scattered sections of 8 U.S.C.).
121. Sontag II, supra note 10;
122. ARIZ. REV. STAT. ANN. § 36-2903.03(B)(2) (2010).
123. See Sontag II, supra note 10.
124. Wolotsky, 960 F.2d at 1335.
125. 8 U.S.C. § 1357(g) (2006).
126. See U.S. Immigration and Customs Enforcements, Partners, http://www.ice.gov/partners/287g/Section287-g.htm (last visited Mar. 7, 2010).
127. 807 F.2d 1214 (5th Cir. 1987).
128. Id. at 1221.
129. Id.
130. Id.
131. Plyler v. Doe, 457 U.S. 202, 211-12 (1982) (stating that the provisions of the Fourteenth Amendment "are universal in their application, to all persons within the territorial jurisdiction" (emphasis omitted))
132. (quoting Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886));
133. cf. Kwong Hai Chew v. Colding, 344 U.S. 590, 596 n.5 (1953) ("The Bill of Rights is a futile authority for the alien seeking admission for the first time to these shores. But once an alien lawfully enters and resides in this country he becomes invested with the rights guaranteed by the Constitution to all people within our borders.")
134. (quoting Bridges v. Wixon, 326 U.S. 135, 161 (1945) (concurring opinion)).
135. See. e.g.. Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992);
136. United States v. Salerno, 481 U.S. 739, 746 (1987);
137. Bowers v. Hardwick, 478 U.S. 186, 191 (1986),
138. overruled by Lawrence v. Texas, 539 U.S. 558 (2003).
139. See supra Part II.D.
140. Sontag I, supra note 9.
141. Tennessee v. Garner, 471 U.S. 1, 9 (1985) (assessing a Fourth Amendment challenge to the use of deadly force on nonviolent suspects and noting that "[t]he suspect's fundamental interest in his own life need not be elaborated upon").
142. U.S. CONST. amend. XIV, § 1.
143. See Abigail Alliance for Better Access to Developmental Drugs v. von Eschenbach, 495 F.3d 695 (D.C. Cir. 2007) (en banc).
144. Id.
145. Id. at 714-15 Rogers, J., dissenting);
146. see also id. at 701 n.5 (majority opinion). The due process claim at issue in the case was rooted in the Fifth Amendment which applies to the federal government and not the Fourteenth Amendment discussed herein. But the analysis is the same.
147. Id. at 701 n.5.
148. 521 U.S. 702, 721 (1997) (finding no fundamental liberty interest in the right to assisted suicide).
149. Abigail Alliance, 495 F.3d at 701 n.5.
150. Id.
151. Id.
152. Id.
153. 521 U.S. 702, 721 (1997).
154. See JOHN E. NOWAK & RONALD D. ROTUNDA, CONSTITUTIONAL LAW § 13.3 (5th ed. 1995).
155. 410 U.S. 113, 157 (1973).
156. Stated differently, whenever the government "deprive[s] any person of life." U.S. CONST. amend. XIV, § 1 ;
157. see also U.S. CONST, amend. V.
158. See Tennessee v. Gamer, 471 U.S. 1, 9 (1985).
159. While the Constitution specifically recognizes the death penalty,
160. see U.S. CONST. amend. V, such "depriv[ation] of life" cannot be accomplished without "due process of law."
161. Id.
162. See also William J. Brennan, Jr., Constitutional Adjudication and the Death Penalty: A View from the Court, 100 HARV. L. REV. 313, 324 (1986) ("[W]hen and if death is a possible punishment the defendant shall enjoy certain procedural safeguards....").
163. Abigail Alliance for Better Access to Developmental Drugs v. von Eschenbach, 495 F.3d 695, 714-715 (D.C. Cir. 2007) (Rogers, J., dissenting).
164. See NOWAK & ROTUNDA, supra note 122, at § 13.3.
165. In many cases, however, repatriation may not be a death sentence. It may only lead to a significantly decreased quality of life. The extent to which the constitutional protection of life should extend to these circumstances is an open question.
166. U.S. CONST. amend. XIV, § 1.
167. Washington v. Glucksberg, 521 U.S. 702, 720 (1997) (
168. citing Rochin v. California, 342 U.S. 165 (1952)).
169. Id.
170. (citing Cruzan v. Missouri Dep't of Health, 497 U.S. 261, 278-279 (1990)).
171. Id. at 721.
172. See Abigail Alliance for Better Access to Developmental Drugs v. von Eschenbach, 495 F.3d 695,702 (D.C. Cir. 2007) (citing Glucksberg, 521 U.S. at 720-21).
173. Id. at 716 (Rogers, J., dissenting).
174. Bellevue Hospital Center, http://www.nyc.gov/html/hhc/html/facilities/ bellevue.shtml (last visited Mar. 7, 2010).
175. DEBORAH REIDY KELCH, CAL. HEALTHCARE FOUND, CARING FOR MEDICALLY INDIGENT ADULTS IN CALIFORNIA: A HISTORY 5 (2005), available at http://www.chcf.org/ documents/policy/CaringForMedicallyIndigentAdults.pdf.
176. See, e.g., HEALTH CARE AND POOR RELIEF IN PROTESTANT EUROPE 1500-1700 (Ole Peter Grell & Andrew Cunningham eds, 1997) (discussing medical care for the poor in Northern Europe including Holland, Belgium, Germany, Denmark, Sweden, Finland, Poland, Scotland, and London).
177. Abigail Alliance, 495 F.3d at 711 (majority opinion).
178. Id. at 711 n.19.
179. In 1882, Congress enacted legislation to bar "lunatic[s]," "idiot[s]," and "any person unable to take care of himself or herself without becoming a public charge" from entry into the United States.
180. Immigration Act of 1882, ch. 376, § 2, 22 Stat. 214. In 1891, Congress added "persons suffering from a loathsome or a dangerous contagious disease" to the list of excludable aliens and also required immigrants to undergo a medical examination as part of the inspection process before they were allowed entry into the United States.
181. Immigration Act of 1891, ch. 551, § 2, 26 Stat. 1084. In 1903 "epileptics" were added to the excludable list.
182. Immigration Act of 1903, ch. 1012, § 2, 32 Stat. 1213, 1214. In 1917, persons of "constitutional psychopathic inferiority" and "chronic alcoholism," and persons afflicted with tuberculosis were also excluded.
183. Immigration Act of 1917, ch. 29, § 9, 39 Stat. 874. The law today continues to exclude those whom it has been determined "have a communicable disease of public health significance." 8 U.S.C. § 1182(a)(1)(A)(i) (2006).
184. Plyler v. Doe, 457 U.S. 202, 212 (1982) (emphasis omitted).
185. Abigail Alliance, 495 F.3d at 717 (Rogers, J., dissenting).
186. Roe v. Wade, 410 U.S. 113, 152 (1973);
187. Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 879 (1992).
188. Abigail Alliance, 495 F.3d at 718.
189. Indeed, Deborah Sontag of the New York Times has reported on hospital attempts to "repatriate" medically needy U.S. citizen children of undocumented parents, as well as a legal immigrant without health insurance.
190. See Sontag I, supra note 9; Sontag II, supra note 10.
191. Goldberg v. Kelly, 397 U.S. 254, 262-63 (1970) (discussing welfare benefits).
192. Id. at 262.
193. Gatewood v. Washington Healthcare Corp., 933 F.2d 1037, 1039 (D.C Cir. 1991).
194. Id.;
195. Cleland v. Bronson Health Care Group, Inc., 917 F.2d 266, 268 (6th Cir.1990);
196. Karen I. Treiger, Note, Preventing Patient Dumping: Sharpening the COBRA 's Fangs, 61 N.Y.U. L. REV. 1186, 1187-88 (1986).
197. 42 U.S.C. §1395dd(a) (2006).
198. Id. § 1395dd(b)(l)(A).
199. 42 C.F.R. § 482.43(d) (2009).
200. Revisions to Conditions of Participation for Hospitals, 59 Fed. Reg. 64, 149 (Dec. 13, 1994).
201. It is worth noting that EMTALA makes little policy sense. Hospitals are reimbursed only for providing expensive emergency treatment; they receive no funding for less-expensive preventative care. As a result EMTALA actually contributes to higher health-care costs. See Morgan Greenspon, The Emergency Medical Treatment and Active Labor Act and Sources of Funding, 17 ANNALS HEALTH L. 309, 312-13(2008).
202. See Yamataya v. Fisher, 189 U.S. 86, 100-01 (1903) (due process is required for deportation proceedings).
203. See 8 U.S.C. § 1229a (2006).
204. Id. § 1229a(a)(1).
205. Id. § 1229a(c)(3)(A).
206. Id. § 1229a(c)(5).
207. Id. §1229a(c)(6).
208. Id. § 1229a(c)(4).
209. See INS v. St. Cyr, 533 U.S. 289, 314 (2001).
210. 8 U.S.C. § 1229a(a)(3) ("[A] proceeding under this section shall be the sole and exclusive procedure for determining whether an alien may be... removed from the United States.").
211. See supra notes 42-47 and accompanying text.
212. See In re Murchison, 349 U.S. 133, 136 (1955) ("A fair trial in a fair tribunal is a basic requirement of due process.").
213. See Lozano v. City of Hazelton, 496 F. Supp. 2d 477, 538;
214. Montejo I, 874 So.2d 654, 658 (Fla. Dist. Ct. App. 2004).
215. Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886);
216. Plyler v. Doe, 457 U.S. 202, 210 (1982).
217. plyer, 457 U.S. at 223.
218. Harper v. Virginia State Bd. of Elections, 383 U.S. 663, 670 (1966) ("[W]here fundamental rights and liberties are asserted under die Equal Protection Clause, classifications which might invade or restrain them must be closely scrutinized and carefully confined.").
219. See supra Parts III. A.2.a.i & ii.
220. The word "perceived" is important; not all undocumented migrants are subject to deportation. See supra notes 44-46 and infra note 187 and accompanying text.
221. See supra Part III. A.2.a.iii.
222. U.S. CONST, art. VI, cl. 2 ("This Constitution, and the Laws of the United States which shall be made in Pursuance thereof... shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding") ;
223. see McCulloch v. Maryland, 17 U.S. 316, 436 (1819) ("[S]tates have no power... to retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by congress to carry into execution the powers vested in the general government. This is, we think, me unavoidable consequence of that supremacy which the constitution has declared.").
224. Hines v. Davidowitz, 312 U.S. 52, 67 (1941).
225. Amalgamated Ass'n of St., Elec. Ry. & Motor Coach Employees v. Lockridge, 403 U.S. 274, 285-86(1971).
226. See LISA M. SEGHETTI ET AL., CONG. RESEARCH SERV., ENFORCING IMMIGRATION LAW: THE ROLE OF STATE AND LOCAL LAW ENFORCEMENT 5 (2009) ("The civil provisions of me INA have been assumed to constitute a pervasive and preemptive regulatory scheme-leaving no room for a direct state or local role.");
227. see also 8 U.S.C. § 1357(g)(1) (2006) (specifying the only statutorily authorized means for state and local involvement in me "investigation, apprehension, or detention of aliens in the United States").
228. See supra note 88 and accompanying text.
229. 475 U.S. 282 (1986).
230. Id. at 287.
231. Id.
232. Id. at 289-90 (citations omitted).
233. Id. at 290.
234. Sontag II, supra note 10 (quoting one hospital administrator as stating "We're trying to be good stewards of the resources we have...We're trying to make sure mat the acute-care hospital is available for individuals who need acute care. We can't keep someone forever.").
235. 496 F. Supp. 2d 477 (M.D. Pa. 2007).
236. Id. at 530-31.
237. Id. at 531
238. (citing 8 C.F.R. § 274a.12(c) ¶¶ 8-11, 14).
239. But see id.
240. Id. at 530.
241. Id. at 532.
242. Wisconsin Dep't of Indus, Labor & Human Relations v. Gould, Inc., 475 U.S. 282, 290 (1986).
243. Bldg. & Construction Trades Council of the Metro. Dist. v. Associated Builders & Contractors of Mass/R.I., Inc., 507 U.S. 218, 229 (1993).
244. U.S. CONST, art. VI, cl. 2.
245. Gould, 475 U.S. at 290.
246. See infra Part III.A.l.
247. Instead of seeking to enforce federal immigration law themselves, members of the Minutemen Project watch the U.S.-Mexican border for people crossing illegally and then pass the location of those migrants on to law enforcement. See, e.g., Matt Gross, Three Miles to Go in New Mexico, N.Y. TIMES, July 18, 2007, http://www.nytimes.eom/2007/07/18/travel/18frugal.html.
248. Jiménez's story is recounted in supra Part II.D.
249. Melissa Holsman, Trail Against Martin Memorial might begin in Sept., STUART NEWS, Feb. 14 2009, at B5.
250. See RESTATEMENT (SECOND) OF TORTS § 35 (1965).
251. Confinement to a mode of transport counts as confinement. See, e.g., Whittaker v. Sandford, 85 A. 399 (Me. 1912) (confinement on a yacht);
252. Sindle v. New York City Transit Authority, 307 N.E.2d. 245 (N.Y. 1973) (confinement on a school bus).
253. See Sontag I, supra note 9 (reporting about patients who did not want to be repatriated);
254. Sontag II, supra note 10 (same).
255. Press Release, MexCare, supra note 39;
256. see also MexCare, Forms, http://mexcare.com/forms.html (last visited Mar. 8, 2010).
257. See, e.g., Abourezk v. New York Airline, Inc., 705 F.Supp. 656, 659 (D.D.C. 1989),
258. aff'd, 895 F.2d 1456 (D.C. Cir. 1990) (no claim for false imprisonment against airline for runway delays where purchase of ticket indicated consent to flight).
259. See, e.g., RESTATEMENT (SECOND) OF TORTS, § 40A.
260. See, e.g., id. § 41.
261. Montejo II, 935 So.2d 1266, 1268 (Fla. Dist. Ct. App. 2006).
262. 8 U.S.C. §1229a(a)(3)(2006).
263. Montejo II, 935 So.2d 1266.
264. Montejo II, 935 So.2d at 1270-71.
265. The court also rejected Martin Memorial's argument that repatriation occurred "during the course of the judicial proceeding" and, as such, should have been protected "by the absolute immunity related to judicial proceedings." Id. at 1269.
266. In rejecting this argument, the court noted simply that "Martin Memorial's actions were taken neither during die course of the judicial proceedings nor in an effort to prosecute or defend its lawsuit." Id. at 1270.
267. Id. at 1270.
268. Montejo 1, 874 So.2d 654, 658 (Fla. App. Dist. 2004).
269. That is, the hospital was not in the same position as an agent of the government executing an order of the court. Montejo II, 935 So.2d at 1270-71.
270. Id. at 1271;
271. see Montejo I, 874 So.2d at 658 ("Pine trial court lacked subject matter jurisdiction to authorize die transportation (deportation) of Jimenez to Guatemala.").
272. See 8 U.S.C. § 1229a(a)(3) (2006).
273. Montejo II, 935 So.2d at 1272.
274. Laura Wides-Munoz, Hospital defends secretly deporting patient, BRADENTON HERALD, July 24, 2009.
275. Id.
276. Melissa E. Holsman, Jurors rule for Martin hospital, STUART NEWS, July 28, 2009, at A1;
277. Deborah Sontag, Jury Rules for Hospital That Deported Patient, N.Y. TIMES, July 28, 2009 at A10.
278. 18 U.S.C. § 1201(a) (2006) (emphasis added).
279. Id.
280. Id. § 1201(g).
281. RICO is not only the basis for criminal charges, it expressly provides for civil suite. 18 U.S.C. § 1964(c). Civil RICO actions will have particular appeal for private litigants because the statute authorizes bodi treble damages and the recovery of attorneys' fees. Id.
282. But civil RICO claims can only be brought upon a showing of injury to business or property by reason of a RICO violation. Id. It may be quite difficult for an undocumented migrant to show such injury.
283. Id. § 1962(c).
284. The purpose would not be limited to the repatriation of undocumented migrants because hospitals have the same incentives to repatriate uninsured legal aliens. See Sontag II, supra note 10 (discussing repatriation of uninsured legal immigrant).
285. 18 U.S.C. § 1961(1)(A).
286. Id. § 1961(5) ("'[P]attern of racketeering activity' requires at least two acts of racketeering activity ... the last of which occurred within ten years... after the commission of a prior act of racketeering activity...").
287. Id. § 1961(1)(B) (citing 18 U.S.C. § 1341 (mail fraud);
288. id. § 1343 (wire fraud)).
289. 18 U.S.C. § 1963(a).
290. Id.
291. 42 U.S.C. § 1395dd(d)(2)A).
292. Id.
293. See Gloria Frank, EMTALA: An Expert Tell Us What It's All About, 27 J. OF EMERGENCY NURSING 65, 67 (2001).
294. Id.
295. Root v. New Liberty Hosp. Dist, 209 F.3d 1068 (8th Cir. 2000).
296. See Power v. Arlington Hosp. Ass'n, 42 F.3d 851 (4th Cir. 1994);
297. Barris v. County of Los Angeles, 972 P.2d 966 (Cal. 1999).
298. Mary Engel, Latinos ' use of health services studied, L. A. TIMES, Nov. 27, 2007, at B1.
299. The government already has measures in place to avoid needing to pay for the long-term medical care of legal immigrants. For example, medical examinations are required for overseas applicants for immigrant visas, 22 C.F.R. § 42.66 (2009), those seeking refugee status,
300. 8 C.F.R. § 207.2,
301. special agricultural workers, id. § 210.1(d),
302. and applicants in the United States seeking to adjust to permanent resident status. Id. § 245.5.
303. See, e.g., New York City Mayor Michael Bloomberg's Executive Order No. 41, City-Wide Privacy Policy and Amendment of Executive Order No. 34 Relating to City Policy Concerning Immigration Access to City Services (Sept. 17, 2003), available at http://www.nyc.gov/html/imm/downloads/pdf/exe-order-41.pdf (prohibiting any city employee from inquiring about a person's immigration status absent certain special exceptions);
304. SAN FRANCISCO ADMIN. CODE § 12H.2(c) (2010), available at http://www.sfgov.org/site/sanctuary-page.asp?id=81004(prohibiting city and county employees from requesting information about immigration status).
305. Former Mayor of New York City Ed Koch noted this concern was one basis for his city's sanctuary policy. See Ronald Brownstein, 'Sanctuary' as battleground, L.A. TIMES, Aug. 22, 2007, at A21
306. (quoting Koch on his objection to checking for immigration documentation at emergency rooms: "The effect would be... illegal aliens would be... contagious and causing disease to spread-It'shard to see where there would be any advantage in [that].") (final alteration in original).
307. This is the current standard for determining whether an arrested alien should be issued a Notice to Appear before an immigration judge in removal (deportation) proceedings. See 8 C.F.R. § 287.3(b). Given the immobility of medically needy aliens and the pressing time concerns, I propose conflating the arrest and subsequent notice into a single notice step.
308. For examples of individuals currently subject to expedited removal, see 8 U.S.C. § 1225(b)(1)(A)(i) (2006) (noncitizens attempting to enter the United States without admission documents, who present false documents, or who misrepresent a material fact to obtain a visa or gain admission to the United States);
309. id. § 1225(b)(1)(A)(iii)(II) (noncitizens who have not been admitted or paroled into the United States who have not affirmatively shown physical presence in the United States for the past two years);
310. Designating Aliens for Expedited Removal, 69 Fed. Reg. 48, 877 (Aug. 11, 2004) (noncitizens encountered within one hundred miles of the U.S. border and who entered die United States without inspection less than fourteen days before the time they are encountered);
311. 8 U.S.C § 1225(c) (noncitizens deemed inadmissible on security grounds).
312. See 8 U.S.C. § 1225(b)(1)(i).
313. Id. § 1228. "Aggravated felony" is defined by statute.
314. See id. §1101(a)(43).
315. Id. §1228(a)(1).
316. Id. §§ 1228(a)(3),(a).
317. Id. § 1229(b)(2)(A).
318. Id. § 1228(b).
319. Id. § 1228(b)-(c).
320. Id. § 1229a(b)(4)(A).
321. See Nina Bernstein, Protests Brew Over Attempt To Deport Pregnant Woman, N.Y. TIMES, Feb. 14, 2006, at B5.
322. Sontag I, supra note 9 ("'Repatriation is pretty much a deadi sentence in some of these cases,' said Dr. Steven Larson, an expert on migrant health and an emergency room physician at the Hospital of the University of Pennsylvania. 'I've seen patients bundled onto the plane and out of the country, and once that person is out of sight, he's out of mind.'").
323. See 8 U.S.C. §1101 (a)(42);
324. id. § 11580(b)(1).
325. See 8 C.F.R. §§ 208.16-208.18 (2009).
326. 8 U.S.C. § 1182(d)(5)(A). Noncitizens who enter the United States on parole have not been "admitted" under the INA; they may be subject to expedited removal proceedings if ultimately deemed inadmissible.