Update (February 14, 2018): In the posts below, we consider the case of Anibal Sanchez vs. Dahlke Trailer Sales. The case embodies violent collision of current U.S. immigration policy. Federal law prohibits the hiring of illegal immigrants. Employers routinely knowingly ignore the law. But when a worker/illegal immigrant invokes employment rights under state law, employers like Dahlke Trailer Sales seek to deny the workers’ state rights, arguing that granting them would cause the employer to violate federal law.
It is a sick joke. It is a mess.
Current U.S. immigration policy seems hopelessly conflicted. Everyone agrees that the U.S. must have an immigration policy. Very few people advocate for totally open borders or for totally closed borders but there is no consensus on a rational middle-ground. We seem split down the middle and paralyzed in conflict. Don’t take it from us. Take it from Minneapolis immigration lawyer, Sandra Feist:
Our immigration laws have become atrophied due to gridlock in Congress and the inability to update even uncontroversial portions of the Immigration and Nationality Act to meet the current economic and humanitarian realities. The last time Congress addressed immigration law in a comprehensive way was 1990 – before the internet existed, before the tech boom of the 90’s, and before 9/11.Immigration reform was not as controversial in 1990, nor in 1986 under President Reagan who created the penalties for knowingly hiring undocumented workers and simultaneously created an amnesty program. If we are to get past the current gridlock, Congress needs to realize that immigration law has been in the past and should again become a bipartisan issue, and that xenophobia has no place in proactive, constructive immigration reform designed to meet the needs of our country.To bring our immigration laws up to the present, Congress needs to enhance laws that protect foreign workers, increase access to the American labor force for non-professional, but essential foreign workers, address the needs of the business sectors reliant on high-skilled professionals, and update the existing framework to address the massive pool of law-abiding, contributing members of our communities and places of employment who are undocumented with no options to rectify their situation.
The elephant in the room when we discuss immigration law is black—as in the growth of non-white immigration to the United States and the discomfort that it causes certain segments of the white American population.
Like other parts of our history, the issue of race once again paralyzes us. In addition, like other parts of our civil lives we do not want to talk about race. Instead, we talk around it trying to appease the racists in our midst. We say we need immigration reform for the sake of social security solvency; we talk of needing high skilled workers, or needing foreign investment. We talk about low birth countries like Japan and Italy and their low economic growth countries. We talk about our aging population and the need to replace workers. We talk about law and order and about walls.
We used to talk about family unification. We used to talk about the shining city on the hill, the huddled masses seeing to be free. The reason we do not talk about the basic humanity and decency of the immigrants is because they no longer look European, the names of their hometowns sound foreign, and their faces look foreign.
Our immigration laws have become increasingly draconian as a result—in the name of security. The easy parallel in our jurisprudence is comparing it to the drug sentencing of crack and cocaine.
George W. Bush, when he took a crack at immigration reform talked about people coming out of the shadows. Cases like Dahlke shows what happens when we insist that people remain in the dark.
The Sanchez v. Dahlke case has again highlighted just how fouled up the situation is. Mr. Sanchez wishes to go to trial in his lawsuit that has gone up to the Minnesota Supreme Court and back down to the trial court in Anoka County but he is afraid to show up at trial because, apparently, appearing in court is known to present a high risk of apprehension and deportation. (See court filings here and here.) Mr. Sanchez seeks to appear remotely via live video from a remote (and presumably undisclosed) location.
In other words, our legal system affords rights to undocumented workers but they face a serious threat of deportation if they seek to vindicate their rights.
Ms. Feist has proposed what she calls “an easy solution to the problem of undocumented workers.” We do not have the expertise to agree or disagree with Ms. Feist’s proposed solution but there is a widespread consensus that the current situation is hard, if not impossible, to defend.
Update (July 3, 2017) (under the headline: “Minnesota Supreme Court Tries to Thread the Needle to Reconcile State/Federal Laws of Employment and Immigration Policy”): In the original post, below, we pondered the conundrum of Anibal Sanchez, who testified that he was an illegal immigrant in the context of his workers’ compensation retaliation lawsuit against his former employer, Dahlke Trailer Sales. Sanchez’s admission put his employer in a tough spot.
Sanchez was suing Dahlke seeking reinstatement but, under federal law, Dahlke would be subject to civil and criminal liability for reinstating Sanchez. In the original post, we questioned whether the Court of Appeals had “side-stepped” this conflict. This past week, the Minnesota Supreme Court held that the intermediate court of appeals got it right. There was, however, a strong dissent by Justice Anderson, joined by Chief Justice Gildea and Justice Stras.
For whatever it’s worth, we think the case is an extraordinarily difficult one but the majority, in our view got it right. While the dissent is correct that the employer’s obligations under the federal law and the state law are irreconcilable as a practical matter, the majority is correct that subjecting employers to the state law arguably (if paradoxically) supports rather than undermines the federal law because it gives a disincentive to hiring illegal immigrants.
The Minnesota Supreme Court majority’s decision is convoluted and it will be unpersuasive to many. This is paradoxically appropriate. Our country’s immigration policy is an incomprehensible M.C. Escherian funhouse of mirrors, trap-doors, ladders, stairs, improvised invisible walls promised but never to be built. Under the circumstances, it seems fitting that employers should be prohibited by law from knowingly employing illegal immigrants but required by law to treat them fairly when they do.
Original post (September 9, 2016) (under the headline: “When Statutes Collide…”): As we all know too well during this presidential election year, our society is at odds with itself on seemingly countless issues.
U.S. immigration policy could be the most complex and divisive issues that we wrestle with.
The vast majority of us recognize that neither extreme — completely open borders, completely closed borders — is either desirable or remotely realistic. But laying down a principled, persuasive, or even comprehensible middle course seems literally impossible.
And this unbelievably difficult puzzle is even more complicated because we cannot “start fresh.” Whatever we decide to do going forward, if or when we change policy, we cannot simply ignore that we have over 11 million illegal immigrants in the United States right now.
We haven’t told you anything yet that you don’t already know. But questions about how we best address the 11 million+ illegal immigrants already here get even more complicated and baffling the deeper you go.
Anibal Sanchez worked for over eight years at Dahlke Trailer Sales, Inc. He endured the “kidding” and “joking” about his illegal status along the way; his employer was well aware that it was employing an illegal immigrant who had supplied them with a false social security card when he applied for the job.
In September 2013, Mr. Sanchez was injured while using a sandblaster, he made a Workers Compensation Claim. In Sanchez’s workers compensation proceeding, Dahlke Trailer Sales elicited sworn testimony from Mr. Sanchez that he was an illegal immigrant and, based on that, Dahlke Trailer Sales put Mr. Sanchez on “indefinite unpaid leave” until he could provide “legitimate paperwork showing that [he could] legally work in the United States…”
The juridical collision here is that Minnesota Workers Compensation law provides workers compensation for workers, whether they are illegal or not. Minnesota Workers Compensation law does not allow employers to retaliate or punish workers for making a workers compensation claim. Federal law (the Immigration Reform & Control Act of 1986 or “IRCA”), on the other hand, prohibits U.S. employers from knowingly hiring or retaining illegal immigrants….
What was Dahlke Trailer Sales supposed to do?
The Minnesota Court of Appeals side-stepped the statutory collision by holding that IRCA doesn’t pose a problem because the purposes of IRCA would be turned upside down if employers were able to fire illegal aliens the second they got injured on the job (which employers cannot do with legal workers, of course, under the state workers comp statute). This would give employers an incentive to hire illegal workers, rather than a disincentive which is the purpose of IRCA.
Seeking review of the Court of Appeals decision by the Minnesota Supreme Court, lawyers from Dahlke Trailer Sales first argued that putting a worker on indefinite paid leave until he could provide proof that he could legally work in the United States was not an “adverse employment action,” as defined by the statute. Second, they argued that Minnesota cannot put Dahlke Trailer Sales in the impossible position between violating Minnesota law or violating U.S. law. The U.S. Constitution has a “Supremacy Clause,” which provides that federal law is the “supreme” law of the land. In short, it trumps.
While the first argument strikes me as a stretch, the second could prove fatal to Mr. Sanchez’s case. It seems to me that a state rule that prohibits employers from retaliating against workers compensation claimants cannot be read to require an employer to retain an illegal immigrant employee, which appears to be the upshot of Mr. Sanchez’s case. After all, Mr. Sanchez appears to have suffered no “adverse employment action” except being told that he could only work if he could show he could do so legally.
The Minnesota Supreme Court recently granted Dahlke Trailer Sales’ petition for review of its loss at the Minnesota Court of Appeals. I look forward to seeing how the justices resolve the case.