The News From the Courts column is written by Maria Bjornerud, an immigration attorney with an office in Southaven, MS. Originally from Russia, Ms. Bjornerud is licensed to practice law in Tennessee and Mississippi. She can be contacted via email at firstname.lastname@example.org.
Balbuena v. IDR Realty LLC, et al.; Malinjer v. Cassino Constr. Corp. et al, Nos.19 & 49/SSM 1 (N.Y. 2006) holds that aliens who are not legally authorized to work in the United States and injured at a work site as a result of the New York Labor Law violations are not precluded from recovering lost wages due to their immigration status.
GRAFFEO, J. (Kaye, G.B. Smith, Ciparick, Rosenblatt concur):
In two separate law suits, Plaintiffs alleged that they had been injured while working on construction sites and commenced personal injury litigation predicated on Defendants' purported violations of the state Labor Law. In both cases, Plaintiffs were aliens unlawfully present and had no authorization to work in the United States. Both plaintiffs were injured while performing construction job and sustained severe debilitating injuries that have rendered them unable to work. Plaintiffs sued Defendants for common-law negligence and violations of New York Labor Law §§ 240(1) and 241(6), seeking various categories of damages, including lost wages. Defendants moved for a partial summary judgment on the issue of lost wages relying on the United States Supreme Court's decision in Hoffman Plastic Compounds Inc. v National Labor Relations Bd.(535 US 137 ), which held that an undocumented alien who provided fraudulent work papers in violation of federal law could not be awarded back pay for work not performed as a result of an employer's unfair labor practice. As the result of these law suits, two inconsistent decisions were rendered by the lower courts and by their corresponding appellate divisions.
The court determined that the INA expressed only a "peripheral concern" regarding the employment of illegal aliens and did not make it "unlawful for an employer to hire an alien who is present or working in the United States without appropriate authorization" or for "an alien to accept employment after entering this country illegally." Sure-Tan Inc. v National Labor Relations Bd., 467 US 883, 893 (1984).
Immigration Reform and Control Act (IRCA) made it a crime for an alien to provide a potential employer with documents falsely acknowledging receipt of governmental approval of the alien's eligibility for employment. 8 USC § 1324c (a). Similar to the INA, however, IRCA does not penalize an alien for attaining employment without having proper work authorization, unless the alien engages in fraud, such as presenting false documentation to secure the employment.
The court determined that IRCA, did not contain an express statement by Congress that it intended to preempt state laws regarding the permissible scope of recovery in personal injury actions predicated on state labor laws. The court found that the preemption language in 8 USC § 1324a (h)(2) was intended to apply only to civil fines and criminal sanctions imposed by state or local law. The court explained that the primary purpose of civil recovery in a personal injury action premised on state Labor Law provisions was not to punish the tortfeasor but to compensate the worker for injuries proximately caused by negligence or the violation of statutory safety standards.
The court examined the legislative history of the Labor Law and determined that the Legislature intended to protect workers by placing responsibility for safety practices at building construction jobs on the owner and general contractor instead of on workers. Moreover, the Labor Law applies to all workers in qualifying employment situations, regardless of their immigration status. Abbatiello v. Lancaster Studio Assocs., 3 N.Y.3d 46, 50-51 (2004). The court concluded that there is a compelling reason to allow an award of damages against a person responsible for an illegal alien's employment when that person knew or should have known of that illegal alien's status.
The court also factually distinguished Hoffman Plastic Compounds. The court pointed out that Plaintiffs in present cases, unlike the alien in Hoffman, did not commit a criminal act under IRCA. Unlike the undocumented alien in Hoffman, who criminally provided his employer with fraudulent papers purporting to be proper work authorization, Plaintiffs in present cases were not even asked by the employers to present the work authorization documents as required by IRCA. Therefore, even if Plaintiffs’ stay and work in the United States were a transgression, the civil recovery under New York law was not foreclosed because Plaintiffs' were engaged in construction work, which by itself was entirely lawful.
The court noted that the New York common-law doctrine of mitigation of damages was not implicated when a worker's injuries were so serious that the worker was physically unable to work. The court found that Plaintiffs’ situations were readily distinguishable from the alien worker in Hoffman, who was not physically injured and could have sought new employment in violation of IRCA by tendering the same false documents that allowed him to work in the first place.
The court suggested that a jury may be permitted to consider immigration status as one factor in its determination of the damages warranted under the Labor Law.
The court held that under Labor Law §§ 200, 240(1)and 241(6) and in the absence of proof that plaintiffs tendered false work authorization documents to obtain employment, an undocumented alien is not barred by IRCA to maintain claims for lost wages.
R. S. Smith, J. (dissenting): found that while plaintiff’s claims were not seeking the enforcement of illegal contracts, they, nevertheless, sought to obtain the benefit of illegal arrangements. Thus, Plaintiffs’ recovery was barred by the rule of New York law that the courts would not aid in achieving the purpose of an illegal transaction. Szerdahelyi v. Harris, 67 N.Y.2d 42, 48 (1986). Even if New York law did permit the recovery, it was preempted by federal immigration law as interpreted in Hoffman Plastic Compounds, Inc. v NLRB, 535 US 137 (2002), because the preemption issue depended not on whether plaintiffs had committed criminal violations of IRCA, but on whether awarding them lost earnings would undermine IRCA's policy. Dissent determined that an award of lost earnings was indistinguishable from an award of back pay in Hoffman.
ACOSTA v. GONZALES, No. 04-72682 (9th Cir. 2006) holds that an alien permanently inadmissible under § 1182(a)(9)(C)(i)(I) is eligible for penalty-fee adjustment of status based on marriage to the United States Citizen, but is ineligible for the extreme hardship waiver of § 1182(a)(9)(B) (v).
Petitioner, who was permanently inadmissible under INA § 212(a)(9)(C) (i)(I), 8 U.S.C. § 1182(a)(9)(C)(i)(I) because he had accrued more than one year of unlawful presence in the United States followed by an illegal reentry, married a United States citizen in April 2001 and applied for adjustment of status based on his marriage, filing the required paperwork and paying the $1,000 penalty fee pursuant to INA § 245 (i). His application was denied due to inadmissibility and he was served with a Notice to Appear. At the hearing, the IJ denied Petitioner’s application for adjustment of status based on the same inadmissibility rule. He granted Acosta voluntary departure with an alternate order of removal to Mexico. Petitioner appealed that decision to the BIA, which affirmed the IJ’s decision without opinion.
The court found that the INA did not clearly indicate whether the inadmissibility provision or the penalty-fee adjustment of status provision should take precedence in Petitioner’s situation. The court revisited its decision in Perez-Gonzalez v. Ashcroft, 379 F.3d 783, 791 (9th Cir. 2004), which held that an inadmissible alien— one who had been removed and reentered the country—was nevertheless eligible for penalty-fee adjustment of status. The court re-stated that the statutory terms of § 245(i) clearly extended adjustment of status to aliens living in this country without legal status” and affected two groups of aliens who were permanently inadmissible under § 1182(a)(9)(C)(i)(II) and § 1182(a)(9)(C)(i)(I). The court re-affirmed its conclusion in Perez-Gonzalez that “nothing in the statutory provisions regarding adjustment of status, nor in the discussion of its purposes, suggests that aliens who have been previously deported or removed are barred” from adjustment of status under INA § 245 (i). The court determined that with respect to Petitioner’s case, there was also nothing to suggest that aliens who reenter the country after accruing more than one year of unlawful presence were ineligible for penalty-fee adjustment of status.
The court rejected the Government’s attempt to distinguish the present case from Perez-Gonzalez based on the different grounds of inadmissibility as unpersuasive. The court found that the alien’s inadmissibility in Perez-Gonzalez was based on 8 U.S.C. § 1182(a)(9)(C)(i)(II), a companion of the provision under which Petitioner was inadmissible, § 1182(a)(9)(C)(i)(I). The court concluded that Congress did not intend to distinguish between two groups of aliens when it provided for a penalty-fee adjustment in order to prevent the needless separation of families and to forestall harsh results. Moreover, the court found support for its decision in Padilla-Caldera v. Gonzales, 426 F.3d 1294 (10th Cir. 2005), holding that the government bore the burden of proving that penalty-fee adjustment of status did not provide an exception for inadmissibility.
The court examined the LIFE Act and concluded that the statute benefits those individuals with a preexisting period of physical presence in the United States, as long as that period included the date of enactment, December 21, 2000. Therefore, the provision excludes from adjustment all entrants later than December 21, 2000. The court determined that an alien inadmissible for accruing more than one year of unlawful presence was eligible for penalty-fee adjustment of status as long as he had entered during the time allocated by statute.
The court rejected Petitioner’s claim that he was eligible for the extreme hardship waiver of § 1182(a)(9)(B) (v) because it was incorporated into § 1182(a)(9)(C) along with the definition of “unlawful presence.” The court held that it would presume that “unlawful presence” had the same general meaning in both parts of the statute. The court, nevertheless, declined to automatically presume that the exceptions and waiver provisions were also incorporated, particularly where they were contained in separate provisions and not within the definition itself. The court found that the plain text of the various exceptions and the extreme hardship waiver weighed against incorporation of anything other than “unlawful presence.”