Imagine There Are No Countries -- The N.H. Supreme Court Can

By Edward C. Mosca

New Ipswich Police Chief W. Garrett Chamberlain has gotten a lot of publicity recently for his stand against illegal immigration. Chamberlain charged an illegal alien from Mexico with criminal trespass, after the man was discovered by the New Ispwich police with false identification papers and the federal authorities declined to take action.

What hasn't gotten much publicity is a recent decision from the New Hampshire Supreme Court involving illegal aliens. It was issued just a few weeks prior to the goings on in New Ipswich. And it allows illegal immigrants who are injured while working in the state to sue their employers and recover lost earnings, which is lawyer-speak for the expected amount of money that they would have earned had they not been injured. Which means that, at the same time that Chief Chamberlain and others were working to close the borders to illegal immigrants, the state Supreme Court was flinging open the courthouse doors.

The case, Rosa v. Partners in Progress, involved an illegal immigrant from Brazil, who was injured while working at a Wal-Mart construction site. It involved two main questions. Whether Rosa could sue for lost wages at all. And, if he could, whether he should recover based on U.S. wages or Brazilian wages.

As to the first question, the state Supreme Court said it saw "no reason to separate an illegal alien's claim for lost earning capacity from the umbrella of other claims that he may make under tort law." But virtually all of the legal authority the Court relied on predated the federal Immigration Reform and Control Act of 1986 (IRCA).

According to a recent U.S. Supreme Court decision, Hoffman v. NLRB, the IRCA "forcefully made combating the employment of illegal aliens central to the policy of immigration law." This suggests that even if illegal aliens should be able to access the courts to make other types of tort claims, which certainly is debatable, there is a very good reason to treat claims for lost earnings differently.

As to the second question, the problem for Rosa was that the Hoffman case prohibited awards of back-pay to illegal aliens by the National Labor Relations Board. The U.S. Supreme Court's reasoning was that such awards would undermine federal immigration policy by compensating the illegal alien for work he could not have lawfully performed. This reasoning applies with equal force to cases like Rosa's because lost earnings represent compensation for work the employee is unable to perform because of his injury. Hence, allowing Rosa to recover lost earnings based on U.S. wages would undermine federal immigration policy because Rosa would be receiving compensation for work that he cannot lawfully perform.

But the Hoffman case proved to be no problem at all for Rosa as the state Supreme Court held that illegal aliens can recover lost earnings based on U.S. earnings, in cases where the employer knew or should have known of the worker's illegal status. In other cases, the measure would be what the illegal alien could have earned in his home country. The Court conceded that its decision would "transform the illegal alien's unlawful wages into lawful compensation," but reasoned that "a person responsible for an illegal alien's employment may avoid this situation by refusing to employ the illegal alien in the first place."

While it may be true that the employer could have avoided the situation by refusing to employ the illegal alien, it is equally true that the illegal alien could have avoided the situation by not entering this country illegally. So why should the illegal alien benefit from his lawbreaking? Because to "refuse to allow recovery against a person responsible for an illegal alien's employment who knew or should have known of the illegal alien's status would provide an incentive for such persons to target illegal aliens for employment in the most dangerous jobs or to provide illegal aliens with substandard working conditions. It would allow such persons to treat illegal aliens as disposable commodities who may be replaced the moment they are damaged."

 Translation: illegal aliens shouldn't be viewed as lawbreakers, but as the innocent victims of a cruel, capitalist society. The Rosa decision not only trivializes immigration laws, it also trivializes the rule of law. Rather than deferring to the intent of Congress, the state Supreme Court instead based its decision on the attitude popular among the cultural elite that illegal immigrants should not be viewed as lawbreakers.

Mr. Mosca is an attorney practicing in New Hampshire. LINK

Posted May 9, 2005

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