Geoffrey Schotter – Writing Sample

EXILED FROM THE LAW: THE PUNITIVE CONSTRUCTION OF STATUTES TO EXCLUDE

UNDOCUMENTED WORKERS FROM LEGAL RIGHTS AND PROTECTIONS

I. INTRODUCTION

The prominence in American politics of a perceived ―problem of illegal immigration‖ has

prevented many courts from addressing the tension between labor protection and immigration

control in a thoughtful or balanced way. 1 In areas of law as diverse as workers‘ compensation

and aggravated identity theft, ―the singling out [of] unauthorized workers as rights-holders is not

a tradition in U.S. worker jurisprudence.‖2 Instead, many courts have applied punitive statutory

construction whenever the rights and liabilities of an undocumented worker are at issue. 3

Punitive statutory construction resolves any remaining ambiguity as to a statute‘s

meaning in the manner least favorable to the undocumented worker.4 Courts use this technique

not only in criminal cases but also in civil claims by undocumented workers against their

employers. 5 They all base their reasoning on the underlying premise, implicit in the very term

―illegal alien,‖ that the undocumented worker, by fraudulently obtaining his employment,6 has

1
Beth Lyon, Tipping the Balance: Why Courts Should Look to International and Foreign Law
on Unauthorized Immigrant Worker Rights, 29:1 U. PA. J. INT‘L L.169, 183-84 (2007); id. at
241-42 (―Isolated without a vote amidst an electorate that feels besieged by the possibility of
global competition, terrorism, and loss of ethnic and cultural supremacy, unauthorized workers
have witnessed a radical slippage in their rights.‖).
2
See id. at 197.
3
The term ―punitive statutory construction‖ will be used throughout this Note to refer to the
practice by many courts of deliberately interpreting statutes against the interests of parties due to
their undocumented status.
4
In this sense, it works in an opposite manner to the rule of lenity in criminal law. See United
States v. Hurtado, 508 F.3d 603, 610 n.8 (11th Cir. 2007).
5
See, e.g., Granados v. Windson Dev. Corp., 509 S.E.2d 290 (Va. 1999).
6
See generally Jason Schumann, Working in the Shadows: Illegal Aliens’ Entitlement to State
Workers’ Compensation, 89 IOWA L. REV. 709, 710-18 (2004).
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forfeited otherwise enforceable rights or remedies 7 and is generally undeserving of the court‘s

sympathy. 8

Section II of this Note provides a brief overview of the immigration policies that make

punitive statutory construction possible. Section III explores how courts use punitive statutory

construction both in civil workers‘ compensation claims by undocumented workers and in

criminal prosecutions of such workers for aggravated identity theft. Finally, Section IV explains

how punitive statutory construction undermines the very policies it purports to uphold.

II. OVERVIEW: THE LEGAL BASIS FOR PUNITIVE STATUTORY CONSTRUCTION

The passage of the Immigration Reform and Control Act of 1986 (ICRA) made the

phrase ―undocumented worker‖ synonymous with ―criminal.‖9 The Act criminalized both the

employment of undocumented immigrants and the use by such immigrants of fraudulent

documents to obtain employment.10 Employers can escape liability if the false identification

documents which undocumented workers present them ―reasonably appear on their face to be

genuine and to relate to the person presenting them,‖ but the workers themselves have no such

excuse if they are prosecuted. 11 As a result, every undocumented immigrant must present to his

employer documentation that falsely purports to represent his identity before that employer will

hire him.12

7
See generally id. at 719-32; see also Granados, 509 S.E.2d 290.
8
See Hurtado, 508 F.3d 603; see also Villanueva-Sotelo, 515 F.3d at 1250 (Henderson, J.,
dissenting).
9
8 U.S.C. § 1324a (2000), cited in Schumann, supra note 6, at 710.
10
Schumann, supra note 6, at 716.
11
Lyon, supra note 1, at 185.
12
This is because the employer would be unwilling to risk IRCA liability by hiring a worker who
does not provide him with fraudulent documents to which he can point in the event he is
prosecuted.
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Court opinions that rely on punitive statutory construction exhibit a seemingly unyielding

determination to find a nexus between the worker‘s prior fraudulent conduct in obtaining

employment and the right or protection he seeks from the court. 13 Yet such a nexus often eludes

the court in these opinions.14 The ultimate justification for ruling against the undocumented

worker, therefore, is based not on the worker‘s act of fraudulently obtaining employment but on

his status as an ―illegal alien‖ who is unworthy of the same protections the law affords to

others. 15

III. THE APPLICATION OF PUNITIVE STATUTORY CONSTRUCTION

A. Worker’s Compensation

After the enactment of the IRCA, courts at both the state and federal level struggled with

the question of whether undocumented workers were still ―employees‖ under various labor

protection statutes now that their employment was no longer legally valid. 16 If they were not still

employees, then the statutory protections would no longer apply to them. 17 Beginning in the

1990s, a small number of state courts began holding that undocumented workers have no right to

collect workers‘ compensation because the class of persons described in the state‘s workers‘

compensation statute does not include undocumented immigrants. 18

13
For key example of an argument claiming such a nexus, see generally James F. Kidd and Rick
Blystone, Not So Fast! A Closer Look at § 440.105(4)(B)(9) Reveals Unauthorized Workers
Should be Precluded From Workers’ Compensation Benefits Under These Circumstances, 81
FLA. B.J. 65 (Oct. 2007).
14
See generally Granados v. Windson Dev. Corp., 509 S.E.2d 290 (Va. 1999)
15
See generally Granados, 509 S.E.2d 290; see also generally United States v. Hurtado, 508
F.3d 603 (11th Cir. 2007).
16
See Schumann, supra note 6, at 715-17 (citing Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984)).
17
See id.
18
See Granados, 509 S.E.2d 290 (Va. 1999); see also Felix v. Wyo. Workers‘ Safety and Comp.
Div., 986 P.2d 161 (Wyo. 1999) (discussed in Schumann, supra note 6, at 722).
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In Granados v. Windson Development Corp., the Supreme Court of Virginia issued one

such opinion that thoroughly illustrates the reasoning inherent in punitive statutory construction.

The ―primary issue‖ in the opinion was whether an undocumented claimant of workers‘

compensation was precluded from recovery because he ―misrepresented his immigration status

and eligibility for employment in the United States.‖19 The court acknowledged that the

claimant‘s fraud in no way contributed to the causation of his injury20 and further acknowledged

that the Virginia workers‘ compensation statute‘s definition of employee did not exclude

undocumented workers but instead included ―[e]very person, including a minor, in the service of

another under any contract of hire.‖21 It held that, while the term did not exclude the

undocumented, it applied specifically to persons under a ―contract of hire.‖22 The IRCA‘s

prohibition of the employment of an undocumented worker, the court concluded, voided any

such contract which that worker entered.23

Notably absent from the court‘s consideration was the ―principal object‖ of workers‘

compensation itself, which is ―to provide employees with expansive protection against the

consequences of employment-related injuries‖ by making employers strictly liable for all such

injuries.24 The court, faced with the two competing policy interests of labor protection and

immigration control, simply gave a higher priority to the latter and ruled against the claimant,

19
Granados, 509 S.E.2d at 290.
20
Id. at 291-92.
21
Id. at 293.
22
Id.
23
Id. This conclusion begs the question of whether minors who are employed in violation of
child labor statutes should also be denied the same benefits, despite their being expressly
included in the definition. The court‘s answer to this is to distinguish child labor laws, the
―principal object of [which] is the protection of the child‖ and which, therefore, ―should be
interpreted with due regard to the child‘s care‖ from the immigration policies at issue in the
present case, for which ―[t]hose concerns are not present.‖
24
BLACK‘S LAW DICTIONARY 1637-38 (8th ed. 2004).
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despite its failure to find an intellectually consistent nexus between the claimant‘s fraud and his

eligibility to collect workers‘ compensation. 25

Even in the majority of states in which courts held undocumented workers to be

―employees‖ under their workers‘ compensation statutes, 26 some courts nonetheless began

denying specific remedies provided for in those statutes to undocumented workers. In one such

decision, the court denied an a claimant compensation for lost earning capacity on the grounds

that, as an illegal alien, he had, by law, zero earning capacity to lose in the first place. 27

The Supreme Court made it far easier for state courts to find a nexus between an

undocumented immigrant‘s fraud in obtaining employment and his ineligibility for certain

workers‘ compensation benefits in 2002 when it decided Hoffman Plastic Compounds, Inc. v.

NLRB.28 This decision established for the first time the principle that the IRCA outright prohibits

courts and other government agencies from awarding certain remedies to undocumented

workers. 29 Some appellate justices have begun to use the principle established in Hoffman Plastic

Compounds as persuasive authority supporting the denial of workers‘ compensation to the

undocumented. 30 Because the scope of the holding ―is limited to the backpay remedy under the

NLRA,‖31 however, any adherence to it by a state court in a decision regarding workers‘

25
See Granados, 509 S.E.2d at 293.
26
See generally Schumann, supra note 6, at 719-721.
27
See Schumann, supra note 6, at 730 (quoting Rivera v. United Masonry, Inc., 948 F.2d 774,
774 (D.C. Cir. 1991) (―[i]n the eyes of the law the injury cannot have caused any incapacity . . .
to earn . . . wages, as the employee had no such capacity before or after the injury.‖)).
28
535 U.S. 137 (2002), cited in Schumann, supra note 6, at 717-18.
29
Schumann, supra note 6, at 725-26.
30
See, e.g., id. at 726 (quoting Reinforced Earth Co. v. Workers‘ Comp. Appeal Bd., 810 A.2d
99, 109-10 (Pa. 2002) (Newman J., dissenting) (―I do not believe that [the state legislature]
intended the absurd result of supplying social welfare benefits in the form of a wage and
unemployment-benefit substitute to one whom federal law says could not obtain those wages and
benefits in the first place‖)).
31
Id. at 734.
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compensation is still discretionary. As such, courts can apply punitive statutory construction by

voluntarily holding that they are precluded by federal law from awarding the remedy.

B. Aggravated Identity Theft

The federal aggravated identity theft statute 32 imposes a two year prison sentence on

―[whom]ever, during and in relation to any felony violation enumerated in subsection (c),

knowingly transfers, possesses, or uses, without lawful authority, the means of identification of

another person.33 Such enumerated felonies vary widely, ranging from theft of public money, 34 to

the fraudulent purchase of a firearm, 35 to the immigration fraud offenses that undocumented

workers routinely commit. 36 Because undocumented workers necessarily must violate the ICRA

by providing their employers with fraudulent documents, any such worker who commits identity

theft for the purposes of fraudulently obtaining employment would be guilty under the statute. 37

The immigrant, however, is indifferent to whether the means of identification he uses belongs to

another person, as his being hired depends not on its authenticity but on the employer‘s

perception that it is authentic.38 Punitive statutory construction has often provided a rationale to

courts determined to uphold the convictions of undocumented workers for aggravated identity

theft without adequately addressing this problem. 39

32
18 U.S.C. § 1028A (2000 & Supp. IV 2006); the statute will be referred to in the rest of this
Note as ―aggravated identity theft.‖
33
Id. at § 1028A(a)(1).
34
Id. at § 1028A(c)(1).
35
Id. at § 1028A(c)(3).
36
Id. at § 1028A(c)(2, 4, 6, 7, 9, 10, 11).
37
See supra notes 9-12 and accompanying text.
38
See generally id. at 1243-46(discussing the ―salient difference between theft and accidental
misappropriation‖).
39
See generally id.; see also United States v. Hurtado, 508 F.3d 603 (11th Cir. 2007).
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In United States v. Hurtado,40 the Eleventh Circuit Court of Appeals applied punitive

statutory construction to the issue of whether the word ―knowingly‖ modifies ―another person‖

or whether it stops at ―means of identification.‖ 41 The defendant was an undocumented worker

who had used a means of identification that, unbeknownst to him, belonged to another person, to

obtain employment. 42 The defendant argued that the government had failed to establish its case

because it could not prove that he knew it belonged to another person at the time he committed

the underlying worker fraud. 43

In support of his contention, the defendant cited United States v. X-Citement Video, Inc,44

in which the Supreme Court addressed a similar issue when interpreting a federal statute

prohibiting traffic in child pornography. 45 The text of that statute suggested—far more than does

the text of § 1028A—that the underage status of the persons depicted in trafficked visual media

was a strict liability element.46 Yet the Court held that the proof of the defendant‘s knowledge

that the persons depicted were underage was necessary and reversed the conviction, 47 reasoning

that holding otherwise would criminalize innocent conduct. 48

The court in Hurtado distinguished the fraudulent use of another person‘s means of

identification from the unwitting distribution of child pornography, holding that the defendant‘s

40
Hurtado, 508 F.3d 603.
41
Id. at 608.
42
Id. at 604-06.
43
Id. at 608.
44
513 U.S. 64 (1994).
45
See id. at 66-68, (describing and quoting relevant portions of The Protection of Children
Against Sexual Exploitation Act of 1977, 18 U.S.C. § 2252 (1988 ed. & Supp. V)).
46
E.g., id. at 68 (―Any person who—(1) knowingly transports or ships in interstate or foreign
commerce . . . any visual depiction, if—(A) the producing of such visual depiction involves the
use of a minor engaging in sexually explicit conduct; and (B) such visual depiction is of such
conduct . . . shall be punished . . . ‖).
47
Id. at 78.
48
See id. at 69
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―possession and use of [another person‘s] identification documents in the course of committing

another felony is not innocent activity‖ even where the defendant does not know that those

documents belong to another person.49

The Hurtado opinion does not attempt to explain exactly how reading ―another person‖

as a strict liability element serves Congress‘s purpose in combating identity theft.50 It simply

derives its construction of § 1028A from the defendant‘s prior commission of the predicate

felony. In a dissenting opinion to a very similar case for the D.C. Circuit Court of Appeals, one

justice defended the strict liability interpretation of ―another person‖ by reference to the harm

that identity theft causes its victims, citing Congressional reports detailing the ―out of pocket,

unrecovered losses‖ and ―damaged credit histor[ies]‖ that they suffer.51 Yet even here, there is no

attempt to show how the use of another person‘s means of identification by undocumented

workers in particular causes any such harm. In opinions like Hurtado, therefore, the court does

not truly enforce §1028A itself; it enforces the ICRA and other federal immigration laws by

means of § 1028A. That is the true purpose of punitive statutory construction.

IV. THE ADVERSE IMPLICATIONS OF PUNITIVE STATUTORY CONSTRUCTION

The most immediate self-defeating consequence of punitive statutory construction is that

it undermines the very purpose of the IRCA, which is to ―remov[e] the ‗magnet‘ that attracts

undocumented workers to the country.‖ 52 Courts never use punitive statutory construction to

target those who employ illegal aliens because there is no similar legal basis for inculpating them

49
United States v. Hurtado, 508 F.3d 603, 610 (11th Cir. 2007).
50
Actually, the court broadens the crime‘s scope to the point that it encompasses even the
unwitting use of another person‘s means of identification ―without lawful authority.‖ See id. at
607.
51
See United States v. Villanueva-Sotelo, 515 F.3d 1234, 1254 n.9 (D.C. Cir. 2008) (Henderson,
J., dissenting).
52
Schumann, supra note 6, at 716 (quoting Montero v. INS, 124 F.3d 381, 384 (2d Cir. 1997).
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as a class. The effect of such lopsided punishment is to reward employers for employing

undocumented workers and encourage them to continue doing so. 53

When applied to workers‘ compensation, punitive statutory construction excuses

employers from civil liabilities for which they would otherwise be responsible and thereby

provides a powerful incentive to continue hiring undocumented workers. 54 Moreover, in creating

such an incentive, the practice weakens labor protections for all workers, documented or not, by

reducing the business costs of failing to maintain a safe workplace. 55 The combination of these

incentives, in fact, leads to the perverse situation in which the employer‘s motivation to maintain

safety standards decreases in proportion to the percentage of his employees who are

undocumented.

The punitive construction of § 1028A has equally problematic implications. To begin

with, it further rewards employers for hiring undocumented immigrants by giving them a

powerful weapon with which to silence and intimidate workers who try to assert their rights. 56

Because the fortuitous chance that the worker‘s false papers belong to another person is usually

something the undocumented workers do not consider before they apply for a job, the employer

can terrify them into submission with the mere possibility of jail time. Such leverage may

potentially affect even documented workers.

Under such conditions, the employer has more to gain by hiring workers who present

false documents and then exploiting them with the active assistance of the courts than by

53
See Lyon, supra note 1, at 185-86.
54
See id. at 198 n.123.
55
Id. at 192.
56
See id. at 189-90 (telling the story of an undocumented worker was tricked by his employer
into accompanying him to the police station where the employer filed a complaint against him
―for having tendered false documents,‖ which led to his arrest on fraud and identity theft
charges).
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reporting such workers to the authorities the moment they present false documents. While most

employers may not be experts in detecting forgery, the concentration of undocumented workers

in certain industries57 should put ―reasonable‖ employers in those industries on notice to be more

diligent in verifying the authenticity of the papers which job-seekers present to them. To the

extent that these employers do not subject such papers to above-average scrutiny, it is arguable

that they are, on some level, willfully ignoring the high probability that they are hiring an

undocumented worker.58 If that is so, then it is even arguable that such employers are complicit

in the criminal conduct of their workers. The punitive construction of § 1028A can only increase

the likelihood of that being the case.

As the opinions discussed in this Note should amply demonstrate, the sole legal basis for

the premise that undocumented workers are undeserving of the law‘s sympathy is the fraud

provision of the IRCA, which makes ―undocumented worker‖ synonymous with ―criminal.‖ Yet

more often than not, the worker‘s fraudulent manner of obtaining employment is largely

immaterial to the issues the court is actually deciding and amounts to little more than a pretext

for the court to single out members of a politically unpopular group for gratuitous punishment.

One can only hope that courts will be more hesitant to apply punitive statutory construction the

more fully they appreciate its adverse implications.

57
See id. at 195 (―construction, extractive operations, and agriculture are . . . among the heaviest
employers of the unauthorized.‖).
58
See generally Jeremy S.K. Chan, Dishonesty and Knowledge, 31 pt. 2 HKLJ 291-96
(distinguishing ―type A dishonesty,‖ in which, ―[g]iven his subjective knowledge, the defendant
had fallen below his subjective standard of honesty and was aware of this, from ―type B
dishonesty,‖ in which, ―given his subjective knowledge, the defendant had fallen below the
objective standard of honesty and was aware of this‖).
10