Reply Brief — Quality Inn South v. Patel

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No. 88-830

IN THE

SUPREME COURT G¢ THE UNITED STATES

NOVEMBER TERM, 1988

QUALITY INN SOUTH, Manibhai Patel, Dilip Patel,

Sumani Corp., Inc.,

Petitioners

RAJNI J. PATEL,

Respondent

REPLY BRIEF FOR PETITIONERS

BARNABY W. ZALL

Law Offices Of Barnaby W. Zall

1156 15th Street, N.W.

Suite 525

Washington, D.C. 20005

(202) 857-5360

Counsel of Record

Counsel for Petitioners

Of Counsel:

Cordia A. Strom

Immigration Reform Law Institute

1666 Connecticut Avenue, N.W.

Suite 402

Washington, D.C. 20009

(202) 462-1969

——

TABLE OF AUTHORITIES

CASES

Doe v. Reivitz, 830 F.2d 1441 (7th Cir. 1987) ... .6,7

Immigration and Naturalization Service v. Delgado,

CS ee eee eee 2

Mathews v. Diaz, 426 U.S. 67 (1976) ......... 3

In re Reyes, 814 F.2d 168 (Sth Cir. 1987), cert.

denied, Griffin and Brand of McAllen, Inc. v.

Reyes, 108 S. Ct. 2901 (1988) ........... 7

Sure-Tan v. National Labor Relations Board,

ee I kg Blain wis « n'o o 7

United States v. Lopez, 521 F.2d 437 (2d Cir.),

cert. denied, 423 U.S. 995 (1975) ......... 2

STATUTES

Fair Labor Standards Act of 1938, as amended, 29

U.S.C. §§ 201-219 (1982 & Supp. IV 1986) .. .1,5

Immigration Reform and Control Act of 1986,

Pub. L. No. 99-603, 100 Stat. 3359 (codified

in scattered sections of 8 U.S.C.)

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a ere a

SUSL G15 ocak shee eee eee

Gee ttl 1. nce ean se eee eee

See. 115 oc es bee eee

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18 U.S.C. § 1546 (1982 & Supp. IV 1986) ......

OTHER

H.R. 3810, 99th Cong., 1st Sess. (1985) .......

H.R. Rep. No. 682 (Part I), 99th Cong.,

26 Seen. CIBER | 6k 4 8 EC

Immigration Reform and Control Act of 1985,

S. Rep. No. 132, 99th Cong., 1st Sess. (1985) . .

Sep. Ct R10)... 5s 5 eee

No. 88-830

IN THE

SUPREME COURT OF THE UNITED STATES

NOVEMBER TERM, 1988

QUALITY INN SOUTH, Manibhai Patel, Dilip Patel,

Sumani Corp., Inc.,

Petitioners

RAJNI J. PATEL,

Respondent

REPLY BRIEF FOR PETITIONERS

PETITIONERS’ REPLY MEMORANDUM

Respondent does not understand the scope of the

Immigration Reform and Control Act of 1986, Pub. L.

No. 99-603, 100 Stat. 3359 (codified in scattered sec-

tions of 8 U.S.C.) (Supp. IV 1986) [hereinafter IRCA].

Surprisingly, neither does amicus curiae United States

Department of Labor. Both fail to understand this

Court’s prior cases involving the rights of illegal aliens

to government largesse, or how those cases affect the

decision below.

These failures to understand are reflected in the

failure of either opposing brief to deal substantively

with the effect of the IRCA on prior cases and legal

theories. As a result, neither opposing brief adequately

deals with the question of remedies avaiiable in a

private action brought under the Fair Labor Standards

Act by an illegal alien. Neither opposing brief ade-

quately deals with the question of how a court should

apply labor-law-related remedies to interfere least with

the immigration laws. Sure-Tan v. National Labor Rela-

tions Board, 467 U.S. 883 (1984).

Thus, neither opposing brief provides valid reasons

why this Court should not grant the petition for a writ.

I. THE IRCA IS A COMPREHENSIVE

ATTEMPT TO REMOVE ALL ILLEGAL

ALIENS FROM THE UNITED STATES.

Both respondent and amicus erroneously imply that

the IRCA is so limited in its sweep as to allow some

avenue for illegal aliens to remain in the United States.

Amicus, for example, while noting that the IRCA “com-

prehensively amended the INA to include new

measures for controlling illegal immigration to the

United States,” contends that the IRCA did not

criminalize the acceptance of employment by illegal

aliens in this country. Brief of U.S. Department of

Labor as Amicus Curiae at 3 [hereinafter Amicus].

Taking such a narrow view of the IRCA distorts the

tremendous effect of the 1986 law. There is no longer

any legitimate means by which an illegal alien can

remain in this country. A review of even a few of the

provisions of IRCA illustrates how miserly are

respondent’s and amicus’ concepts of the effect of the

IRCA.

A. Employer Sanctions

As all parties recognize, the IRCA made it illegal

to hire an illegal alien. 8 U.S.C. § 1324a.

B. Harboring and Shielding Megal Aliens

Neither respondent nor amicus recognized the

changes to 8 U.S.C. § 1324 (as distinguished from 8

U.S.C. § 1324a, which IRCA created). That section,

which criminalizes “conduct tending substantially to

facilitate an alien’s remaining illegally in this country,”

United States v. Lopez, 521 F.2d 437, 441 (2d Cir.), cert.

denied, 423 US. 995 (1975), was substantially

strengthened by IRCA. The amendment weakened the

so-called Texas Proviso, which had for so long stymied

this Court’s analysis of immigration law enforcement.

Immigration and Naturalization Service v. Delgado, 466

U.S. 210, 240 (1984). The authors of the amendment

were well aware of the cases interpreting this section

and intended to expand and clarify coverage of

employers of illegal aliens. Jmmigration Reform and

Control Act of 1985, S. Rep. No. 132, 99th Cong., 1st

Sess. 29-30 (1985).

C. Fraudulently Obtaining Employment

In addition, the IRCA also criminalized an alien’s

false attestation or use of documents to obtain employ-

ment. The IRCA amended 18 U.S.C. § 1546 to

criminalize attempts to circumvent the prohibition on

hiring.

D. Denial of Welfare Benefits

Further, the IRCA substantially restricted an illegal

alien’s ability to obtain social services benefits.’ IRCA

established a comprehensive method to remove illegal

aliens from state welfare rolls. IRCA, sec. 121.

E. Denial of Adjustment of Status

IRCA prohibited many illegal aliens from legaliz-

ing their status. Although IRCA generously gave mil-

lions of illegal aliens amnesty, 8 U.S.C. § 1255Sa, at the

same time, it restricted eligibility for amnesty to those

illegal aliens with many years’ residence in this country.

In addition, aliens who entered illegally or violated the

terms of their entry were not allowed to adjust to per-

manent residence after the passage of IRCA. 8 U.S.C. §

1255(c)(2).

1 This court has long held that illegal aliens do not have

constitutional rights to social services: “Neither the

overnight visitor, the unfriendly agent of a hostile foreign

power, the resident diplomat, nor the illegal entrant, can

advance even a colorable constitutional claim to a share in

the bounty which a conscientious sovereign makes available

to its own citizens and some of its guests.” Mathews v. Diaz,

426 U.S. 67, 80 (1976).

F. Unlawful Entry

IRCA continues the criminalizing of entry into the

United States without inspection and admission by im-

migration officers. 8 U.S.C. § 1325.

G. Congressional Findings and Declarations

Finally, Congress twice declared its resolve that il-

legal immigration be stopped. First, Congress found

that it is an essential element of the program of im-

migration control that the “INS and . . . other ap-

propriate Federal agencies . . . prevent and deter the

illegal entry of aliens into the United States and the

violation of the terms of their entry.” IRCA, sec. 111.

Then Congress declared its resolve that “the immigra-

tion laws of the United States should be enforced

vigorously and uniformly.” IRCA, sec. 115.

Is it consistent with IRCA that one government

agency should strive “vigorously and uniformly” to

“prevent and deter” illegal immigration while at the

same time another branch of government is providing

illegal aliens with the financial means to remain in this

country? The Eleventh Circuit felt its decision below

allowing an illegal alien to maintain an action for

thousands of dollars in back pay and liquidated

damages reflected a “seeming anomaly”, Petitioner’s

Brief at Appendix B10; a better view might be that the

Eleventh Circuit misunderstood the sweep of the chan-

ges made by the IRCA.

Respondent and amicus similarly miss the com-

prehensive nature of these changes and declarations.

They thereby miss the essential point of IRCA: illegal

aliens are not to be allowed to remain in this country.

Any activity by a government agency to enforce a labor-

related law should not encourage or allow an illegal

alien to remain in this country. To do otherwise would

undercut the complex and comprehensive structure

created by the IRCA.

II. RESPONDENT’S AND AMICUS’ VIEW OF

THE ROLE OF THE DEPARTMENT OF

LABOR IS INCONSISTENT WITH THE

PLAIN LANGUAGE OF THE IRCA.

Respondent’s and amicus’ views on the role of the

Wage and Hour Division of the Department of Labor

are inconsistent with the plain language of the IRCA.

Both respondent and amicus contend that Congress in-

tended the Wage and Hour Division to increase its en-

forcement of the FLSA. Respondent’s Brief in Opposi-

tion at 6 [hereinafter Opp.]; Amicus at 11. Seemingly,

under respondent’s and amicus’ legal reasoning, this in-

crease is to occur at the expense of, or at least com-

pletely independent of, the enforcement of the new

prohibition on hiring illegal immigrants.

In fact, both respondent and amicus contend that

Statutory language authorizing more funds to the Wage

and Hour Division, IRCA, sec. 111(d), is a signal that

Congress intended more FLSA enforcement. For ex-

ample, amicus U.S. Department of Labor, which ought

to know what in a statute affects it, contends: “By

providing increased funding . . . Congress obviously in-

tended the Secretary to enforce the FLSA’s wage and

hour requirements with respect to illegal aliens.”

Amicus at 11.

No such direction appears in the provision of IRCA

that authorizes additional funding. There is only the

Statement that the additional funds are provided “in

order to deter the employment of unauthorized aliens

and remove the economic incentive for employers to

exploit and use such aliens.” IRCA, sec. 111(d). The

only relevant explicit reference to the Department of

Labor in the IRCA, however, is that employers retain

employment verification records for inspection by

Department of Labor officials. 8 U.S.C. § 1324a(b)(3).

There is no mention of wage and hour records in the

IRCA. Thus, contrary to the position of respondent and

amicus, the job of the Department of Labor is to help

enforce the prohibition on hiring illegal aliens.

The Senate Committee Report buttresses this in-

terpretation when it declares that the additional funds

are “for enforcement activities in connection with the

bill.” S. Rep. No. 132 at 13. The House Committee

reports and proposed bills, cited in other contexts by

respondent and amicus, contain no specific authoriza-

tion language for the Wage and Hour Division. See

H.R. 3810, 99th Cong., 1st Sess., sec. 111 (1985); H.R.

Rep. No. 682 (Part I), 99th Cong., 2d Sess. 7, 11 (1986).

III. THIS CASE IS APPROPRIATE FOR

REVIEW.

Both respondent and amicus misunderstand the

need for review by this Court. In support of the

proposition that the circuits are not in conflict, both op-

posing briefs cite many cases (most handed down prior

to the 1986 passage of IRCA) in which lower courts

have provided labor-law related and other benefits to

illegal aliens. Opp. at 8; Amicus at 3. These cases,

however, are examples of the need for guidance from

2 For an example of an IRCA provision directing the

Department of Labor to monitor and protect wages and

working conditions for American workers, see 8 U.S.C. §

1186(a)(1)(B) and (g) (1986).

this Court on an important topic misunderstood by the

lower courts. Sup. Ct. R. 17.1(c).

It is precisely because the lower courts are

uniformly ignoring the prior decisions of this Court that

this case needs to be reviewed. In several cases, lower

court panels have been split on the essential question

of the rights of illegal aliens. Compare Doe v. Reivitz,

830 F.2d 1441 (7th Cir. 1987) (holding that agency may

not deny family benefits, even though parents were il-

legal aliens and thus ineligible to register for work, as

required by the program) and In re Reyes, 814 F.2d 168,

180 (Sth Cir. 1987), cert. denied, Griffin and Brand of

McAllen, Inc. v. Reyes, 108 S. Ct. 2910 (1988) (noting

that despite prohibition of employment in Migrant and

Seasonal Agricultural Worker Protection Act, illegal

Status was irrelevant under both that act and the Fair

Labor Standards Act) with Doe v. Reivitz, 830 F.2d

1441, 1451 (Wood, J., dissenting) (noting contradiction

between court’s holding and the congressional scheme

to deter illegal immigration) and Reyes, 814 F.2d 168,

171 (Jones, J., dissenting) (arguing that previously no

court has allowed illegal aliens to recover statutory

remedies under the FLSA).

It is notable that respondent barely mentions this

Court’s decision in Sure-Tan. Opp. at 8, n. 3. In Sure-

Tan, this Court held that illegal aliens were employees

covered by the National Labor Relations Act in cases

of explicit anti-union bias, 467 U.S. 883; nevertheless,

remedies available to United States citizens in such

cases would not be available to illegal aliens. /d. at

902-3. In addition, by endorsing the Ninth and Second

Circuits’ expansive interpretations of Sure-Tan on back-

pay and other mechanisms that allow illegal aliens to

remain in the United States, respondent and amicus

again ignore the clear implications of the comprehen-

sive IRCA program to eliminate illegal immigration

and remove illegal immigrants from the United States.

CONCLUSION

THEREFORE, Petitioners respectfully request this

Court to issue the writ of certiorari to the United States

Court of Appeals for the Eleventh Circuit.

Respectfully submitted,