"Let's cross the border. I'll take you for $300 each. It's the ultimate for the poor. You won't have to sleep on the floor. Not like here, where you're dying of hunger. It's the land of money where you'll find beautiful houses and big cars. It's the most beautiful thing in life. Come with me to

the North!" (1)

I. INTRODUCTION

Globalization has hastened the integration of markets, allowing for easier access to resources and free flow of capital, and furthering the economic dominance of the United States on an international scale. But this process has not benefited most peoples of the world. Latin American migrant laborers, for instance, who have traditionally faced obstacles in the pursuit of their livelihoods, are encountering new challenges that imperil their jobs, freedom, and lives.

Migrant workers' rights have recently stepped to the forefront of U.S. politics and society as President George W. Bush proposed to make it easier for these and other immigrant workers to enter the United States. (2) In spite of this, at present, immigrant "hired hands" are subjected to low pay and harsh working conditions as a result of employers trying to minimize their losses from the competition spurred by globalization.

This article analyzes issues current to the globalization debate and its effects on Latin American migrant workers in the United States. These issues include workers' rights, immigration, and cross-national cooperation. Part I of this article introduces the conflict between globalization and human rights, setting the foundation for migrant labor demand. Part II illustrates the American experience with Spanish-speaking migrant labor, from the Bracero Program to the H-2 visa program. Part II also highlights contemporary American immigration issues, from the Patriot Act to modern case law, and the recent use of the Alien Tort Claims Act as a possible litigation tool for repatriated migrant workers.

Part III discusses international efforts to grant migrant workers' protections through the International Labor Organization, the United Nations and NAFTA. Part IV concludes, as the article begins, with the assertion that domestic and international agendas should focus on protecting migrant workers rights, rather than subordinating them wholly to employer demands. (3)

II. GLOBALIZATION AND HUMAN RIGHTS

The Bureau of the Census estimates the number of unauthorized, foreign-born persons in the United States at 8,835,450. (4) Most, if not all of these foreign workers migrate knowing that it will be difficult to attain legal status to work in the United States, but come nonetheless in search of the American Dream--"a job, upward mobility, and security." (5) Clearly, the main attraction to immigrants from Mexico and Central America are U.S. wages, which can be six to ten times higher than prevailing wages from these regions. (6) As such, workers from across the class spectrum in Latin America risk life and family separation to enjoy even a working class U.S. salary. (7)

Subsequently, economic life in the United States has gone through a de facto integration of markets with its Latin American neighbors via the cross-border flow of labor and capital. (8) Migrant workers have experienced globalization concurrently with U.S. workers, but in drastically different ways and, undoubtedly, more adversely than their U.S. counterparts. (9) For one, Latin Americans cross the U.S. border daily in search of work, and consequently, many migrants experience unbelievable suffering and tragedy. (10)

Once in the United States, "immigrants toil in poor and often illegal working conditions to which they refuse" to report to authorities for fear of deportation. (11) Thus, in many instances, migrant workers face discrimination and abuse. (12) Their perils may include exclusion from certain forms of employment or denial of access to social services. (13) Their working conditions may be exploitative or hazardous, or they may face violence by their employers. (14) They may even be denied basic rights of due process or receive ill-treatment from officials. (15) Abuse of migrant workers has become even more prevalent in the context of measures taken in the United States' efforts against terrorism. (16)

Yet, the benefit Latin American migrant workers bring to the United States is undeniable. One study estimated that for every additional 100,000 immigrant workers, three percent of the 75-year cost of fixing Social Security is eliminated via payroll taxes contributed by immigrant workers, thus supporting the impending "baby boom" retirement. (17) Moreover, although the current U.S. unemployment rate is at 5.9%, (18) employers in many parts of the United States are "unable to find sufficient workers for the most physically demanding and arduous jobs." (19)

Adding to a history of diversity, today's Latin American immigrants live throughout the United States working in various industries, including construction, hospitality, clothing, manufacturing and meat processing. (20) The evidence requires reconciliation between the burgeoning globalization of the U.S. economy and the human rights of migrant workers.

A. Globalization and the Movement of People

Generally, globalization is an ongoing, sociopolitical occurrence which includes the liberalization of national economies. (21) Its significance lies in the expansion of the market, where more people and countries are incorporated into the global market economy, and of the lives of individuals are driven by market demands more than ever. (22)

The concept of globalization is becoming increasingly important in the United States, especially for those who argue that people should flow as freely as capital. (23) Nonetheless, as barriers to international trade and investment are eroding, increasing the mobility of goods and capital, restrictions on the free movement of workers have endured, (24) especially for those attempting to enter the United States. Globalization has thus posed many challenges to migrant workers who see a pressing need for upward harmonization of labor rights across borders. (25)

Indeed, free labor is essential to economic advancement and prosperity. (26) Notwithstanding, workers in developing countries view globalization with contempt as the labor market expands beyond their regional capacities. (27) Accordingly, globalization has expanded the U.S. low-wage labor market while industrial and semi-skilled job opportunities have been outsourced. (28)

Unfortunately, the relationship between labor organizations and markets has not developed in tandem, as slowly developing labor rights have lagged far behind sharply expanding markets. (29) As a result, in large cities and rural areas alike, work conditions in the U.S. have begun to mimic those of the third world. (30)

In comparison, Latin America, a widely varied region, entered the global economy slowly after realizing the failure of the import-substitution economic model and from new pressures for market liberalization from the North. (31) Since 1990, there have been about twenty bilateral agreements signed between countries of the Americas that attempt to open trade and investment between South, Central, and North American countries, but emphasize primarily the subordination of migration and labor to the needs of capital. (32) Mexico, for instance, faces pressures from the United States in particular to prevent illegal border crossings into the U.S., and to further deter transit migration via Central America. (33)

Mexican immigrants today are attracted not only by the opportunities for immigrant labor by U.S. employers and the resulting higher wages, but also by the unique network of family and neighborhood connections in the United States. (34) These immigrants seek refuge from demographic population growth, urban and rural insecurity, economic disruptions, and severe deterioration of the environment in Mexico. (35) Mexicans and other Latin Americans who leave their home countries however contribute vast amounts of money into home economies, often sending their paychecks home to support their families in poverty-stricken regions. (36) This is especially true today as remittances from Latin American emigrants now outnumber foreign direct investment as Latin America's primary source of foreign capital. (37)

Employers in the United States still view migrant workers as a form of cheap labor, keeping costs of produce, textiles and services low enough to compete with their outsourced competitors. (38) Consequently, the employment of undocumented migrant workers has in many cases supported the existence of many U.S. employers, perpetuating a substantial economic interest in more immigration. (39)

Globalization, however, has provoked resentment among the U.S. poor whose potential jobs are replaced, and even amongst middle and upper class Americans who disapprove of social changes generated by immigrants. (40) Indeed, Latin American diasporas in many parts of the United States have been perceived of as a threat. This is especially the case since September 11, 2001, where the stresses of global terrorism have emerged, even though the root cause of terrorism is global inequality and not immigration at large. (41)

Both proponents and opponents of globalization, however, believe that diverse immigrant cultures brought by migrant workers positively impact American society from both a legal and social standpoint. (42) This cultural diversity increases ethnic diversity, opens windows to new cultures and generally enriches our society for future generations. (43)

B. Human Rights Issues

As mentioned, the benefits of globalization include primarily the reduced costs of doing business and a wider, more reachable consumer market. But these forces also facilitate the migration of people. (44) As a result, human rights laws in recent decades have been expanded and institutionalized along with international law. (45) In fact, many advocates of human rights seek the globalization of laws, which would result perhaps in a cooperative, standardized immigration scheme unlike anything before it. (46)

This call for the legalized mobility of people across borders has been strengthened by U.S. employers seeking cheap unskilled labor, as well as opponents of organized people trafficking, which has regrettably manifested itself in all developed nations. (47) Undoubtedly, international migration today affects more people around the world and contributes more to social and cultural change than in any time in past. (48)

On the other hand, public opinion polls show that a majority of those in advanced nations prefer fewer immigrants. (49) Interestingly, countries like the United States, that has built itself through immigration and which has immigrants prominently featured in its nation-building histories, has spent the 21st century deflecting the relevance if its immigration past as it debates current policies on immigration. (50) Nonetheless, the most lasting social and cultural constant in the U.S. has, indeed, been change through immigration. (51)

National government, undeniably, has the power to determine who enters its borders via the principle of national sovereignty. (52) Non-citizens seeking jobs, therefore, are subject to the entrance limitations set forth via U.S. immigration law. (53) Notwithstanding the progressively restrictive immigration laws from advanced countries like the U.S. the deregulation of the labor markets worldwide have actually increased illegal immigration from Latin America. This has further resulted in economic, political, and criminal crisis in Third World countries that experience an emigration of workers. (54)

In essence, the corresponding rush of illegal immigrants into the United States has spawned well-organized traffickers, whose "cargo" consists of desperately poor and often uneducated immigrants who are forced to pay exorbitant smuggling fees to opportunistic coyotes. (55) This system is tantamount to the indentured servitude of colonial America, which today undermines U.S. wage and working conditions, its social establishments, and backing for all immigration in general. (56) As a result, both legal and illegal immigration has experienced severe disapproval, even though undocumented immigrants are the hardest, most loyal workers that developing countries have available. (57)

Arriving in the United States, many migrant workers join, at least temporarily, ethnic enclaves. These are segments of communities where immigrants are the predominant majority, with most workers either on temporary visas or working without U.S. authorization altogether. (58) Such populations are unlikely to organize or make claims to the local authorities about their employment problems. (59) This could be attributed to the fact that each year thousands of migrant workers in the United States are fired or harassed for attempting to organize unions. (60)

The current economic uncertainty has partially contributed to contemporary anti-immigrant movements. (61) These movements have undoubtedly pressured mainstream politicians into positions about immigration that are contrary to U.S. long-term economic interests. (62)

Subsequently, it is imperative that not only the U.S., but also the international community take notice of and address the structural inequities in current immigration regimes that produce harms against migrant workers. (63) Because of their increasing profiles in society and the endless demands asked upon them by employers, migrant workers rights have in modern times risen to the level of international human rights.

Human rights law is the legal mechanism used to, inter alia, curb harms against the underrepresented and measure unlawful xenophobia, and it now also protects migrant workers. (64) Human rights norms associated with migration can be found in the international system, codified by an increasing body of international law" (65) developed through conventions, covenants, and declarations. These norms provide a common standard against which to evaluate individual state behavior (66) and are enforced by the national [and international] judiciary. (67)

III. A HISTORY OF THE U.S. AND LATIN AMERICAN MIGRANT LABORERS

American immigration law has always been geared to what is in the "nation's best interest," which has changed over time to include admission policies that admit or limit immigration based on criteria such as diversity, national origin, family reunification, employment needs, and humanitarian concerns." (68) Due to concerns over terrorism and the unpredictable U.S. economy, the current immigration policy, notwithstanding President Bush's 2004 election-year announcements, focuses on removing those immigrants who are illegally in the United States. (69)

Nevertheless, Spanish-speaking migrant workers continue risking life and limb to arrive in the United States, most of them overwhelmingly attracted to the American lifestyle and opportunity for work not available in their countries of origin. (70) Indeed, forty to fifty percent of seasonal farm workers in the United States are undocumented, a fact which has led the executive and legislative branches to call for a curb in immigration, which in turn has affected even documented migrant workers' rights. (71)

The judicial branch has also acted upon on issues regarding migrant workers in recent years. Accordingly, state and federal courts have handed down a plethora of rulings, recognizing the importance of granting rights to migrant laborers, (72) and others limiting their protections. (73) Even the long lost Alien Torts Claims Act has resurfaced in the courts, with scholars advocating its use on behalf of protecting migrant workers. (74) The theme, however, underlying modern legislation and case law demonstrates a discriminatory nature of U.S. law concerning migrant workers. (75)

A. Importing Migrant Workers--U.S. Immigration Programs

Migrant workers represent an easily disgardable labor pool, "bestowed with few rights." (76) The Bracero Program and the H-2A Program clearly illustrate this concept in practice. Accordingly, a close examination of these programs confirm that U.S. migrant worker policies were, and still are, designed and adjusted to accommodate the needs of the United States labor force and supply options, and not for the protections of workers. (77)

1. The Bracero Program

Historically, before the U.S. had achieved independence from England, Mexicans occupied much of what is currently the western U.S. (78) Since the 1800s, Mexican immigrants had filled the roles of temporary workers for industries in the United States, and especially California, where inexpensive labor was needed in industries such as in agriculture and railroads. (79)

Early in the twentieth century, Mexican immigrants started coming into the United States in larger numbers as an inexpensive and plentiful labor source. (80) Like slaves in previous generations, these immigrants served to fill jobs that others were averse to perform. (81)

As U.S. workers went off to fight in World War II, the fear of impending labor shortages in the agricultural sector of the economy resulted in a more welcoming attitude toward Mexican contract labor. (82) Government officials began to recognize that labor importation was valuable to the national defense and, therefore, could not be denied. (83) Indeed, strong and steady agricultural production was one of the most important links to "the cause of victory." (84) As a result, the United States negotiated an arrangement with Mexico resulting in the signing of a bilateral agreement on August 4, 1942, creating the Bracero Program. (85)

An early bilateral migration regime put into effect between the two nations, (86) the Program's official purpose was not to displace domestic workers; rather it was to bring in Mexican workers to ease the effect of World War II on the U.S. agricultural work force. (87) Fortunately for U.S. agricultural employers, the Mexican government provided Mexican laborers who were not afforded much protection under the law. (88)

The Mexican government did obtain, however, a number of guarantees for the braceros through negotiations. (89) The guarantees included protections from engaging in U.S. military service and subjection to discriminatory acts. Their employers were also required to provide transportation and living expenses. (90) In addition, they maintained the right to repatriation as required by Mexican labor law. (91)

Typically, Bracero workers came from rural, undeveloped areas of Mexico. They had little education, and were legally disadvantaged as they barely had the ability to enforce the terms of their contracts, and yet were contractually bound to their employers. (92) Moreover, U.S. agencies in charge of enforcing workers' rights stateside deferred, not surprisingly, to employers' interests. (93)

Over the next two decades following the enactment of the program, "five million 'braceros' were transported from Mexico to the United States, bolstering the agricultural industry in twenty-four states with an 'endless army' of cheap labor." (94) These actions subdued immigration issues between the two countries, as the United States, a growing industrial nation, was at the time in dire need of foreign labor. (95)

The bilateral Bracero approach was realized because both the U.S. and Mexican governments, though based on different reasons, favored the temporary relocation of Mexicans to permanent displacement or settlement. (96) Meanwhile, the U.S. Ministry of Foreign Affairs migrant labor bureau and the Mexican Departments of Labor and the Interior assigned quotas to various Mexican states, and Mexican and U.S. officials screened prospective workers at the recruitment center in Mexico City. (97) The workers selected to participate in the program were then transported to the United States and placed on farms throughout the country, only to be returned to the recruitment center in Mexico when their contracts expired. (98) Nonetheless, the opportunity for work was a considerable enticement to Mexican workers as they often paid bribes for a chance to work in the United States. (99)

The principal opponent of the program at the time was organized labor, represented primarily by the AFL-CIO, and later a number of social reform-human rights organizations. (100) These groups argued that there was already a fair supply of domestic workers, including many unemployed citizens who would gladly accept agricultural work if better wages and work conditions were offered. (101) Moreover, Mexico became concerned with the discrimination its nationals faced in certain southern states. Ultimately, Mexico feared that a "mass exodus of laborers" could threaten its own economic development. (102)

The program, however, continued on well after the war, and in 1951 Congress passed Public Law 78, which re-established the Bracero Program and reiterated its main principle, to avoid "causing [an] adverse effect on domestic workers or their working conditions." (103) In fact, under Public Law 78, the U.S. Secretary of Labor was responsible for certifying the importation of foreign labor did not adversely affect wages and working conditions for domestic workers, yet in areas concentrated with braceros, agricultural wages remained steady or dropped. (104) Moreover, studies reflected that growers intentionally used the Bracero Program to lower farm wages, which in turn resulted in growers' inability to hire willing domestic laborers because of the lower wages. (105) The 1951 agreement seemingly provided greater protections for the bracero worker, as well as for domestic workers; however, the U.S. government did little to enforce them. (106)

Consequently, growers imported an excessive number of Mexicans, overworking them, under-paying them, and housing them in squalid conditions. (107) Growers then fired workers who voiced complaints, sending them home without any practical recourse, blacklisted, and even with debts still owed. (108)

In response to the inherent inequalities rooted in the program, Cesar Chavez, then an upstart human rights advocate, started the United Farm Workers Union (UFW) in 1965, which successfully attempted to improve the working conditions of migrant farm laborers. (109) These union organizing efforts by the UFW, and other groups like the Texas Farmworkers Unions, eventually led to the enactment of federal protections for migrant farm workers, including the Migrant and Seasonal Agricultural Workers Protection Act in 1983. (110)

Moreover, the anger among Mexicans, stemming from the inequalities inherent in the program, were less rooted in resentment toward the U.S. government, which attempted to exercise its sovereign right to make laws and policies, but more towards the cost of exercising those rights, which weighed heavily on the Mexican workers. (111) Even today, evidence of the inequity can be observed in the migrant worker salary, with 73 percent of migrant workers earning less than $10,000 per year, placing 61 percent of them below the poverty level. (112) Migrant workers regrettably remain deprived of any substantive negotiating power. (113)

Since the Bracero program's end, the U.S. government has made little effort to protect rights of Mexican economic migrants on a bilateral basis. (114) The United States has nevertheless experienced increased immigration from Mexico, especially during the 1970s and 1980s, as the demand for immigrant labor has risen in other sectors of the U.S. economy, and Mexicans have enjoyed increased opportunities and higher wages than those offered in Mexico. (115)

As a social matter, many migrant workers have encouraged their families to move to the United States as well. (116) This has in turn led to Americans' fear of Mexican migrants taking away U.S. jobs and depressing wages for native workers, and American cultural insecurities, where Mexican immigrants have changed the demographic landscape in the United States, especially in border states such as California, Texas, Arizona, and New Mexico. (117) Consequently, many migrant workers are accused of criminal activity, often with little evidence, despite the fact that most migrant workers in the United States are "peaceful and law-abiding." (118)

2. The H-2A Program

Like the Bracero Program, the H-2A program has its beginnings during World War II, bringing to the U.S. workers from the Bahamas, the West Indies, and Mexico to harvest crops in support of the U.S. war effort. (119) To maintain a consistent workforce within the United States while Americans fought the war, the importation of Mexican workers was formalized into the Bracero program. (120) The H-2A program was then established to support eastern U.S. agriculture.

Importing foreign agricultural workers to the United States, the H-2A program was originally administered by both the U.S. Department of Labor and the Immigration and Naturalization Service. 121 The aim of the H-2A agricultural worker program, like that of the Bracero Program, was for the Department of Labor to only certify admittance of H-2A workers where U.S. workers were not available and where U.S. wages and working conditions were not affected by the presence of new migrant workers. (122)

The H-2A Program, still in operation, allows for the admission of nonimmigrant aliens who perform agricultural labor or services of a temporary or seasonal nature, at the request of a U.S. employer that obtains permission from the U.S. Department of Labor. (123) Subsequently, the specific workers selected by the employer receive temporary nonimmigrant visas from the U.S. consulate in their home countries. (124)

Procedurally, employers requesting visas are required to apply 60 days before they need the visas, and the Department of Labor has twenty days to make a decision. (125) Also, employers must provide housing to the temporary workers that meet health and safety standards acceptable to the Department of Labor. (126)

The H-2A program includes an extensive set of regulations, which primarily originated with the Bracero program. (127) These regulations are dependant upon the U.S. Department of Labor's Employment and Training Administration (ETA) and its interpretation of the regulations, to prevent harm to H-2A workers. (128) H-2A workers rights include free transportation to and from the worksite, free housing during employment, workers compensation insurance, and a guarantee of at least three-fourths of the total amount of work offered in a job announcement and payment of a minimum wage. (129) H-2A workers are also entitled to the prevailing wage afforded domestic workers. (130)

About one quarter of the nation's total H-2A workers in 2001 worked in North Carolina tobacco and vegetable farms, orchards, nurseries, and Christmas tree farms. (131) In fact, most if not all of the H-2A workers across the country are from Mexico, which reflects a substantial change from the early 1990's when most H-2A workers came from Caribbean nations. (132)

Admittance of H-2A workers tripled from 1995 to 1999. (133) The Department of Labor, to better manage the needs of farmers, approved the importation of 99% of the workers requested. 134 Notwithstanding this fact, employers applied for only 42,000 H-2A visas for foreign agricultural workers in 1999, which accounted for less than 1% of the of the U.S. farm workers, as the U.S. General Accounting Office (G.A.O.) estimated about 600,000 undocumented farm workers laboring in the United States. (135) Also, in 1996, the G.A.O. determined that the Department of Labor failed in one-third of cases to meet the twenty-day deadline. (136) This discrepancy can perhaps be attributed to the cumbersome nature of the H-2A program requirements that may actually deter participation and encourage the hiring of undocumented workers. (137)

Indeed, H-2A visas limit employment to the length of the applied-for offer by the applicant employer, leaving the workers to serve at the employer's discretion. (138) Moreover, employers can discharge or replace H-2A workers with newly admitted H2-A workers at-will, requiring the new H-2A's to pay the costs of visas, transportation and other administrative costs. (139) There are no standards to which the employer must satisfy in firing an H-2A employee if the employer finds the worker inefficient or careless during the trial period or a part of the harvest season. (140) The H-2A worker must then pay his own fare to return to his country and reimburse the company for the expense of bringing him to the United States. (141) In essence, either by firing or contract termination, the H-2A workers must eventually return to their homelands. (142)

Moreover, H-2A workers are prohibited from changing employers or from bargaining for employment terms. They are limited to remedies inferior to those afforded other workers, subjecting them to deportation and future exclusion from the visa program if they attempt to assert their rights. (143)

Clearly, the costs of the program are placed upon the individual workers. (144) As a result, the workers usually have to borrow money to pay for the visas and other documents they need, as well as for their transportation to and from the United States. (145) What is worse, the H-2A program does not allow for any permanent residence or citizenship track for any of the workers, (146)

Furthermore, H-2A workers have very little opportunity to protect their employment rights when they are violated because of their attenuated connection to labor law enforcement institutions. (147) As it stands, the ETA over the years has usually exercised its discretion in the service of agricultural employers, not the U.S. workers, and certainly not the H-2A workers. (148)

According to one author, a recent U.S. law, the Migrant and Seasonal Agricultural Worker Protection Act (AWPA), gives workers a private right of action in federal court if, inter alia, "an agricultural employer does not accurately disclose the terms and conditions of employment at the time of recruitment, houses the worker in housing which does not meet the federal and state standards, fails to pay wages when due, does not keep proper payroll records, or fails to provide an itemized wage statement." (149) The AWPA allows domestic and undocumented workers to sue their employers in federal court, and provides for actual or statutory damages, but the statute, by its terms, explicitly excludes H-2A workers from its coverage. (150)

In essence, H-2A workers are left with only state law remedies. (151) Realistically, however, most H-2A workers are employed in rural counties where judges and potential jurors identify far more with employers than with H-2A workers, practically leaving the workers unable to get a jury of his peers in most circumstances, an undeniable right to U.S. citizens. (152)

Most H-2A workers are not informed of the social and labor law services available to the immigrant segment of society, and because of little or no English skills, may find it difficult to seek out such services. (153) Making matters worse, H-2A workers are usually isolated into communal housing for long periods of time without family, and may have little contact with their surrounding communities. (154)

In addition to leaving their native homes to live in temporary and often-dilapidated housing, H-2A work is difficult, repetitive and physically demanding for even the most youthful and physically-fit workers. (155) At best, the availability of fieldwork varies by season, and is often unpredictable as to when seasons may begin or end. (156) H-2A workers do usually manage to get farm work for 23 to 25 weeks per year, but exposure to the pesticides is common in the fields, and because little is done to protect migrant workers from these hazards, their effectiveness in the field is greatly reduced. (157)

Furthermore, H-2A workers cannot rely upon government aid or services available to even the poorest Americans. (158) Accordingly, H-2A workers are usually denied such fundamental rights as freedom of speech and association by their employers. (159)

H-2A workers are undeniably amongst the least protected workers in the U.S and are viewed as less than fully human. (160) Yet, during a recent campaign to unionize strawberry workers, the United Farmworkers noted that "if Americans paid just five cents more for their two-dollar pints of strawberries, the field workers' wages could be doubled", with both agribusiness and consumers firmly benefiting from the farmworkers low wages. (161)

B. U.S. Legislation Post-9/11

Since the events of September 11, 2001, the issue of immigration and work visas has been front and center in the national spotlight. Ironically, on September 11, 2001, the [U.S.] House of Representatives was to vote on bill 245(i), legislation viewed as pro-immigrant that would allow undocumented immigrants already in the United States, to "adjust" their status without having to leave the United States. (162) In essence, the legislation would have allowed people illegally living and working in the United States. To apply for and receive green cards from INS offices in U.S. cities, rather than returning to their homelands and applying at foreign, consular offices." (163)

Concurrently, Mexico's President Vicente Fox offered a proposal asking the United States provide for 250,000 work visas exclusively to Mexican nationals each year. In return, Mexico would do its best to provide for the return of its emigrated workers, offer micro-loans to them and scholarships for the children. (164) With the events of that fateful day, perpetrated by immigrants from the Middle East, (165) these proposals were eliminated and never considered.

As a direct reaction to those events, and perhaps from political opportunism, President George W. Bush on October 8, 2001 issued an Executive Order establishing the Office of Homeland Security. (166) The Office of Homeland Security was to coordinate its efforts with existing executive agencies, state and local governments, and even private agencies, to collect and analyze security and immigration data. (167)

The USA PATRIOT Act passed both houses of Congress and was signed into law by President Bush on October 26, 2001. (168) In its original form, the Act is 342 pages long and has changed law from at least fifteen statutes." (169) The Act, along with subsequent, ancillary legislation, has attempted to tighten U.S. borders and restrict entrance to migrant laborers, particularly from Latin America, who seek work within the United States.

For example, the Border Security Act of 2002 greatly altered the process of tracking immigration in the United States by requiring an increase in the number of and salaries of Border Control agents and investigators, who are charged with tracking down and deporting an estimated three million foreigners in the United States who have overstayed their visas. (170) Also in 2002, the National Security Entry Exit Registration System was implemented, where selected entering foreigners are fingerprinted for matching against a criminal and terrorist database. (171) The Department of Justice further requested that local law enforcement cooperate with the federal government in patrolling for non-citizens who have overstayed their visas in the United States. (172) In fact, contrary to any previous administration position, former Attorney General Ashcroft asserted that states have the "inherent power" to enforce federal immigration law. (173)

Instead of deterring attempted illegal entries, however, the new legislation has helped to increase the fees of illegal smugglers, and made the already dangerous border crossing more perilous by encouraging multiple attempts. (174) A significant increase in deaths among migrants has resulted in recent years. (175)

The Patriot Act has had the ancillary effect of keeping undocumented immigrants within the United States, in that a return to their homelands would make re-entry to the United States even more difficult, if not impossible. (176) Undocumented or illegal immigration is by definition unregulated, and the United States is devoting increasing amounts, perhaps too much of human, financial, and political capital resources to its control. (177)

Congress recognized the burden its legislation has placed on migrant workers. In preparation for the 2006 midterm elections, an amnesty for certain undocumented workers was rejected, instead to squander limited government funds for homeland security and towards prosecuting a non-threatening sector of the economy and society. (178) Indeed, none of the Al Qaeda 9/11 perpetrators were employed in the United States. (179) In contrast, most Spanish-speaking migrant workers are employed in arduous manual labor, in industries or entry-level service industries. (180)

In recognition of these facts, former Homeland Security Secretary Tom Ridge made public that the federal government should grant undocumented workers "some kind of legal status some way." (181)

In 2006, President Bush renewed the Patriot Act, and called for a permanent renewal to address terrorism, immigration and the economy. (182) Whether as a result of election-year politics, or sincere concerns over the plight of migrant workers, President Bush's announcements will not be encouraging unless the proposals address, in addition to the needs of the U.S. economy, the human rights of migrant workers and their families, and the earnest ability to earn legal residence.

C. U.S. Case Law Affecting Migrant Workers

Recent case law has done more to grant protections to migrant workers in the United States than has legislation or executive orders. The Supreme Court, however, has been inconsistent in its rulings as evidenced by Velazquez and Hoffman.

1. The Velazquez Case

The Supreme Court in Legal Services Corporation v. Velazquez struck down as unconstitutional Congress' restriction preventing legal services lawyers from challenging any welfare laws or regulations in the course of representing individual clients seeking welfare benefits. (183) The decision was a victory especially for agricultural workers who live in rural areas where there are few pro bono attorneys, making it difficult to find legal representation. Rural workplaces attract few attorneys that speak Spanish. The few available attorneys have meager resources necessary to establish a network of worker services, the legal expertise to protect workers rights or have already represented the agricultural employers themselves. (184)

Before the Velazquez decision, migrant workers were particularly vulnerable to harm from their employers. (185) Unable to enforce their rights, employers exploited migrant workers by paying an unlivable wage, or by failing to provide suitable work conditions, among other offenses. (186) Employers are constantly aware of documented and undocumented workers under their employ, know that they are scared of being deported and understand little about the American legal system, "and could not, in any event, hire a lawyer." (187) Velazquez ensures that, for migrant workers in the United States, the law is in reach and available to pursue their rights.

2. The Hoffman Decision

In 2002, the Supreme Court took away some important protections previously afforded migrant workers. In Hoffman Plastic Compounds v. NLRB, the Court ruled that undocumented workers are not entitled to backpay awards under the National Labor Relations Act ("NLRA"). (188) Jose Castro, an undocumented employee of petitioner Hoffman, presented documents that appeared to verify his authorization to work in the United States, but were in fact false. (189) After his firing, the petitioner refused to pay his back wages, citing U.S. immigrant legislation. (190)

In a previous determination, the NLRB had determined that "the most effective way to ... further the immigration policies embodied in IRCA [was] to provide the protections and remedies of the NLRA to undocumented workers in the same manner as to other employees." (191) The Court, however, relied on Sure-Tan, Inc. v. NLRB (192) and the IRCA of 1986, which makes it unlawful for employers knowingly to hire undocumented workers or for employees to use fraudulent documents to establish employment eligibility. The Court ruled that, "to avoid 'a potential conflict with the [Immigration and Naturalization Act],' the Board's reinstatement order had to be conditioned upon proof of 'the employees' legal reentry,m93 The Court continued that since Castro was "never lawfully entitled to be present or employed in the United States, and thus, under the plain language of Sure-Tan, he has no right to claim back pay." (194)

The Supreme Court's decision in Hoffman reversed the NLRB, 5-4, citing the NLRB decision as contrary to, even undermining, federal statutes not within the NLRA's scope. (195) The Court concluded that "awarding backpay to illegal aliens runs counter to policies underlying IRCA, policies the Board has no authority to enforce or administer." (196) Therefore, as the Court "consistently held in like circumstances, the award lies beyond the bounds of the Board's remedial discretion." (197)

The dissenting members of the Court insisted that the back pay entitled to Castro did not undermine U.S. immigration policy. (198) Justice Breyer maintained that, "as all the relevant agencies (including the Department of Justice) have told us, the National Labor Relations Board's limited backpay order will not interfere with the implementation of immigration policy. Rather, it reasonably helps to deter unlawful activity that both labor laws and immigration laws seek to prevent." (199)

   Justice Breyer continued,

   The Court does not deny that the employer in this case dismissed an
   employee for trying to organize a union a crude and obvious
   violation of the labor laws. (200) And in the absence of the
   backpay weapon, employers could conclude that they can violate the
   labor laws at least once with impunity. (201) Hence the backpay
   remedy is necessary; it helps make labor law enforcement credible;
   it makes clear that violating the labor laws will not pay. (202)

The dissenting Justices in Hoffman recognized that by forfeiting all of the pay earned by undocumented workers, the employer ignores the labor laws, leaving helpless the very persons who most need protection from exploitative employer practices. (203) Indeed, migrant and undocumented workers are now less likely than ever to complain about unfair wages and working conditions, or to defend their rights due to their immigration status for fear of deportation. (204)

Preserving access to civil legal services for migrant workers, as ensured under Velazquez, guarantees the enforcement of rights that protect against exploitation and holds all employers accountable for their actions. (205) Although undocumented workers like Jose Castro are legally entitled to the wages that they earned, there is very little chance that they will be able to demand earnings or enforce their rights after Hoffman. (206) U.S. law affords workers a minimum wage, health and safety protections, and other types of legal protections, but for the undocumented, it is nearly impossible to enforce those rights because the fear is if they do so, their employers will retaliate and alert immigration authorities (207)

   Migrant workers are also vulnerable to exploitation because,

   They lack the language skills to navigate the legal system or seek
   help doing so; because they lack familiarity with [the U.S.] legal
   system and consequently do not know that they have rights or how to
   enforce those rights; because they work in jobs where they are
   physically isolated from other people, from people who speak their
   language, or from advocates who can help them; because they work
   such long hours that they find it difficult to reach out for help;
   or because they are dependant on their employers for their housing,
   food, and other necessities of life. (208) In essence, the
   vulnerability of migrant workers is part of a conscious effort
   aimed at subverting their employment rights. (209)

D. The Alien Tort Claims Act as a Possible Litigation Tool

The Hoffman decision seemingly denies migrant workers all of the wages earned in the United States if they are to return to their native countries without a means of re-entry into the States. There is, nevertheless, a possible avenue of U.S. federal litigation on behalf of these workers for violations of international labor law under the Alien Torts Claim Act. (210) The seldom used statute originates with the Judiciary Act of 1789, (211) but has experienced a renaissance in the last twenty years as the "touchstone" of international human rights litigation brought in the United States. (212)

Mostly all ATCA litigation has challenged violations committed outside the United States, but the statute does not expressly limit litigation to extraterritorial violations. (213) Several federal decisions have recently ruled that plaintiffs "may use ATCA to enforce those international norms [that] apply to private actors." (214)

For example, in Kadic v. Karadzic, the Second Circuit rejected the notion that "the law of nations, as understood in the modern era, confines its reach to state action." (215) Rather, the court held that, "certain forms of conduct violate the law of nations whether undertaken by those acting under the auspices of a state or only as private individuals." (216)

Fifteen years before Kadic, the Second Circuit ruled in Filartiga v. Pena-Irala that a Paraguayan citizen properly exercised federal jurisdiction by making an ATCA claim against another Paraguayan citizen who deliberately tortured under color of official authority. (217) The court held that conduct violated universally accepted norms of international law and of human rights. (218)

Notably, the court relied on The Paquete Habana, where the Supreme Court reaffirmed that "where there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations." (219) Today, migrant workers' rights have recently become recognized as matters of international law, but only in select nations. (220)

Consequently, there has been a surge in plaintiff employee claims under the ATCA litigating a plethora of issues. Starting with In re Union Carbide Corp. Gas Plant Disaster at Bhopal, (221) several victims in India brought suit as 145 consolidated personal injury actions under the ATCA against Union Carbide for a disaster caused by leakage of lethal gas from the defendant's chemical plant in Bhopal. (222) The Second Circuit dismissed the individual plaintiffs' actions on grounds of forum non conveniens, ruling that there was no abuse of discretion in the district court's dismissal of personal injury actions because all but a few of the 200,000 individual plaintiffs were Indian citizens located in India, and defendant had consented to the jurisdiction of Indian courts. (223)

More recent attempts to regulate employer abuses, however, bode well for potential migrant worker claims under the ATCA. Specifically, a class action brought by Latin American banana workers against multinational fruit and chemical companies, alleged to have exposed the workers to a toxic pesticide, was allowed to proceed in state courts. (224)

As a result, the ATCA can be directly useful to non-citizen workers whose universally accepted human rights have been violated. (225) According to Wishnie, considering "the extreme coercion to which many undocumented workers are subjected, including employer threats to contact INS or, in some cases, physical [abuse] of workers, ATCA litigation of labor violations may afford non-citizen workers broader remedies than those otherwise available under domestic labor and employment statutes." (226)

Migrant agricultural employees who formerly worked for U.S. companies and have been denied back pay can possibly look to the U.N.'s new International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (MWC) as an international norm that has been violated to their detriment. For thousands of other undocumented agricultural workers in the United States, many of who work alone, and most of who are statutorily excluded from the protections of the NLRA and other important labor statutes, the ATCA may become an important tool in protecting their rights as workers and human beings when they find themselves unable to re-enter the United States. (227)

On the other hand, the federal government, the agri-business community and the international business community altogether are concerned that if corporations must comply with fundamental human rights norms in their employment of migrant laborers, the ATCA will directly limit free enterprise. This fear that the ATCA discourages the employment of migrant, agricultural-workers is unwarranted, as those ATCA cases that have been litigated allege that a company knowingly participated in universally condemned human rights norms, such as genocide, war crimes, slavery, extra-judicial killing, torture, unlawful detention, and crimes against humanity.

In reality, few if any agriculture-based corporations are known to be involved in such extreme crimes that they need to fear ATCA liability. Yet, migrant workers, with the proper legal representation, may have a litigation tool in the ATCA to address employers' failure to pay, as well as other rights that Hoffman has restricted.

IV. INTERNATIONAL LAW AFFECTING MIGRANT WORKERS

Migrant workers rights have indeed risen to the level of international human rights law. Traditional institutions like the International Labor Organization and the United Nations have assumed the responsibility of criminalizing violations of human rights norms against migrant workers. Regional agreements like NAFTA, however, fall short of satisfactorily protecting migrant workers' rights as the protection of capital has taken precedent in globalized economies.

A. The ILO

The practice of setting international labor standards was originally conceived after World War I with the International Labor Organization (ILO). (228) The ILO was a welcome, new forum where labor unions and employers, and even governments, gathered to solve labor issues of the day. (229) Today, the ILO is known as an institution of research and technical support with the aim of raising labor standards worldwide. (230)

The ILO's 1998 Declaration on Fundamental Principles and Rights at Work establishes a comprehensive list of core labor standards for protecting migrant workers, listing its fundamental principles as (1) "the elimination of discrimination in respect of employment and occupation," (2) "the elimination of all forms of forced compulsory labor," (3) "the effective abolition of child labor and," (4) "freedom of association and the effective recognition of the right to collective bargaining." (231) Under ILO law, whether or not a nation has ratified the particular convention, every member nation is bound to abide by these principles and constitutional norms. (232)

The ILO does address migrant worker issues directly under The Convention Concerning Migration for Employment. (233) The United States is not a signatory to that treaty, however, because for one H-2A program falls woefully short of the convention, and secondly the United States has no intention of granting further protections on an international level to which its own government has not committed to. (234)

The ILO's complaint mechanisms, moreover, are very limited. (235) Complaints may be filed only by trade organizations, employer organizations, or governments, and with exception of the "core human rights," are allowed only to allege violations by another government if both nations have ratified the pertinent convention. (236) Unfortunately, the ILO, despite its long reach on economic matters, is not linked to dispute resolution mechanisms or to migrant worker protection networks. (237)

As recently as November 2002, the AFL-CIO proactively filed an official complaint with the ILO's Committee on Freedom of Association, and claimed "the Hoffman decision violates key international labor conventions." (238) A well known U.S. labor union, the AFL-CIO feared the decline of organizational efforts amongst U.S. workers, since migrant workers often toil alongside their U.S. counterparts. (239) The ILO's forthcoming determination should, in the least, influence employers to acknowledge the organizing rights of migrant workers.

B. U.N. Conventions

The United Nations has sponsored three multilateral instruments that treat human rights matters as well as migrant worker issues. (240) They are the Universal Declaration of Human Rights, (241) the International Covenant on Civil and Political Rights, (242) and the International Covenant on Economic, Social and Cultural Rights. (243)

The newest addition to the U.N.'s system of human rights protections, the "International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (MWC), entered into force on July 1, 2003, having been ratified or acceded to by 21 states." (244) Per the U.N., "the Convention provides a comprehensive framework for the protection of migrants, regardless of their legal status, by transit countries, sending countries," and host countries alike, and "will be overseen by an expert committee." (245) The signatory nations, however, all represent states where migrant labor flows outward. (246)

The MWC promotes the humane treatment and improved work conditions for migrant workers worldwide, as well as for their families. (247) With 93 articles imposing obligations on parties to protect the rights of migrant workers, the U.N. has championed the migrant worker cause and has provided the most comprehensive protections to date. For instance, Article 42(3) states, "migrant workers may enjoy political rights in the state of employment." (248) Article 15 requires that migrant workers shall have the "right to fair and adequate compensation." (249) Here, the Hoffman decision clearly violates the MWC by denying employment protections and backpay to undocumented workers, and it discriminates against them based on their immigration status. (250) Regrettably, the United States is not obliged to comply with the MWC as it is not a signatory party. Correspondingly, the protections afforded by the MWC, although numerous, are nonetheless overshadowed by the fact that many nations that accommodate migrant workers, most notably the United States, are not signatory parties. (251)

Migrant workers contributions to a nation's economy and society are thus dismissed as not rising to the level of government attention. (252) The United States and other developed countries have been reserved about signing the MWC for fear that it may afford too many rights and entitlements to undocumented migrants. (253) To the contrary, the MWC is a starting point for migrant workers, an often abused sector of society, to assert rights with the confidence of their citizen counterparts. (254)

C. NAFTA

An examination of NAFTA as a source of international labor rights is important not only because globalization has an impact on migrant workers, but also because U.S. domestic law, in force under NAFTA, has historically failed to adequately address the issues faced by migrant workers. (255)

NAFTA contains 11 labor standards, albeit in side provisions, which each member must adhere to. (256) These include: (1) "freedom of association [and] the right to organize", (2) "the right to bargain collectively", (3) "the right to strike, "(4) "prohibition of forced labor, "(5) "labor protections for children and young persons, "(6) "minimum employment standards "(like minimum wages), (7) "elimination of employment discrimination, "(8) equal pay for equal work (male and female), (9) "prevention of occupational injuries and illness, "(10) compensation for such injuries or illness, and (11) "the protection of migrant workers." (257) NAFTA, however, leaves these issues to be dealt with in accordance with the members' respective domestic policies, as the NAALC does not "establish common minimum standards for their domestic law." (258) Mexican law, thus, provides the standards by which laborers rights are addressed in that nation.

The NAALC assigns each member country a National Administrative Office (NAO), an agency within each nation's labor department responsible for the NAALC's administration and management. (259) Here, a complaint may be filed by any person, trade union, NGO or other organization of the country that seeks review of another country's alleged failure to meet any of the NAALC's eleven labor principles. (260)

Furthermore, Article Three of the NAALC requires effective "appropriate government action" to provide labor protection, while Article Four permits a private right of action. (261) The panel, as a final penalty, "may suspend ... the application to the Party complained against of NAFTA benefits in an amount no greater than that sufficient to collect the monetary enforcement assessment." (262) Also, under Article Five, administrative proceedings held to enforce a migrant worker's rights must "not entail unreasonable charges or time limits or unwarranted delays." (263)

In reality though, injured Mexican migrant workers are rarely remedied. Under NAO procedures, after an initial complaint, the opposing nation's labor law enforcement is evaluated, and a report is disseminated that offers criticism and policy changes. (264) The reports, in practice, merely create bad or embarrassing publicity for a government or employer to improve its treatment of workers, without enforcing its laws. (265)

In effect, the NAALC's "domestic standards" allows deleterious policies towards migrant workers free of any concrete consequences, such as reductions in minimum wage, cuts in social insurance or job insecurity. (266) It does not punish signatory governments where their domestic laws and practices fail to meet internationally recognized labor standards. (267)

Indeed, judgments are made by agencies of another country's executive branch with little expertise in the law it is reviewing, and no independent judicial officer is bound to precedent. (268) Because cases are heard by political appointees, the resulting NAO decisions are greatly influenced by political considerations. (269)

Overall, the NAALC has not operated to assure that the U.S. government will allow migrant workers to exercise freedoms of speech and organization as is expected of their U.S. counterparts under the U.S. Constitution. (270) Regrettably, only the health and safety, child labor, and minimum wage provisions are enforceable. (271) Moreover, NAFTA imposes no substantive cooperation on labor regulations, and accordingly, solves none of the problems that globalization poses for migrant workers. (272) Subsequently, the NAALC does little to prevent employer abuse or enforcement of labor standards, as the penalties for a violation are merely token penalties. (273)

The little incentive to enforce the rights of migrant workers under the law coincides with the fact that NAFTA's primary purpose is to create favorable conditions for investment for the United States. (274) Accordingly, a recent study by the Carnegie Endowment for International Peace reported that NAFTA has not improved the lives of Mexican nationals or their opportunity to compete economically against the developed world. (275)

Consequently, several years after the signing of the NAALC, there have been no signals that the United States will enforce laws guaranteeing guest workers their most basic labor rights. (276) Because of the lack of internal incentives, outside pressure from NAFTA members is necessary to point out the United States' non-enforcement and to assure future enforcement of its labor laws. (277) Unfortunately for migrant workers and their employers, the United States is "both judge and party" of NAALC related disputes. (278)

V. CONCLUSION

In 1944, Justice Jackson ruled that workers rights are of the utmost significance in U.S. law when he wrote:

   In general, the defense against oppressive hours, pay, working
   conditions, or treatment is the right to change employers. When the
   master can compel and the laborer cannot escape the obligation to
   go on, there is no power below to redress and no incentive above to
   relieve a harsh overlordship or unwholesome conditions of work.
   Resulting depression of working conditions and living standards
   affects not only the laborer under the system, but every other with
   whom his labor comes in competition. (279)

Farm workers, domestic workers, low-level supervisors and other categories of migrant workers numbering in the millions in the United States are expressly denied labor law and human rights protections. (280)

It will be difficult to isolate the long-term effects of the September 11th terrorist attack on migrant workers rights. (281) But what is known today is that law enforcement has focused on hunting down foreign would-be terrorists within U.S. borders, renewing interest in government control of immigration. (282) In essence, immigration policy has been treated as a national security issue, rather than as a phenomenon of globalization. (283) As a result, the United States currently spends one billion dollars on border enforcement annually. (284) Yet, the only clear impact this increased border enforcement appears to have is increased deaths among immigrants. (285)

Years of wrangling over issues of migrant labor have, however, put somewhat of a spotlight on the plight of these workers in recent years. Consequently, the U.S. President announced an amnesty-type immigrant initiative during election-year 2004, which to date has not come to fruition because of inter-party politics. (286)

Moreover, Congress has on its own initiative considered similar proposals in recent sessions in acknowledgement that "Hispanic men display one of the highest labor force participation rates of any subgroup surveyed by the Department of Labor." (287) This included the Kolbe-Flake bill, which would have set aside migrant labor as a security issue, and addressed it rather as a force of the market. (288) The resulting election has not, however, resolved the immigration issue. Essentially, the White House, in balancing its options, does not want to be viewed as rewarding illegal workers, but would like to satisfy U.S. industries and Latino constituents. (289)

Nevertheless, these proposals will do little to stem the labor violations that often occur with migrant workers. In fact, the Congressional Hispanic Caucus has referred to these initiatives as an unwelcome return to the Bracero Program. (290) Furthermore, due to the anti-immigrant climate that currently prevails in the United States, it is unlikely that the government will enact any legislation to assist migrant workers. (291)

Notwithstanding these facts, recent developments have shown encouraging signs that migrant workers may receive protections from other sectors of society. For one, U.S. banks have begun accepting the matricula consular, an identification card issued by the Mexican government that indicates Mexican nationality. (292) Banks recognize that foreign workers offer advantages to the U.S. economy at large that, whether the U.S. government addresses or not, private enterprise must adapt to in this "globalized" economy.

Moreover, foreign governments like that of Mexico are steadily applying pressure for the U.S. government to address migrant worker issues as employment and human rights concerns, as evidenced by talks between President Bush and President Fox at the Summit of the Americas in Monterrey, Mexico in 2003, and in Santiago, Chile in 2004. (293) As the globalization phenomenon moves forward, it will gradually become difficult for the United States to ignore these calls from trading partners as other emerging markets, like China and India, move in on low to semi-skilled industries that the United States once dominated as a result of its abundant migrant labor source stemming from the Bracero Program. Additionally, if the United States is to have any success in attracting allies to aid in its Middle East projects, it must face up to the issues which migrant labor-producing nations view as important, such as providing vital legal services for its nationals as in Vazquez, and guaranteeing pay for work completed as the Hoffman Court restricted.

As it stands, however, the United States has failed to have other countries upgrade their labor standards because the United States itself has failed to protect migrant workers rights. (294) This is especially discouraging as the United States itself makes regular public announcements for the protection of human rights and "core labor standards." (295) Fortunately, though, the development of international norms and human rights are promising developments for migrant workers and labor rights proponents. (296) Even though these agreements do not per se "result in better human rights practices," (297) the discussion itself is important.

In the globalization context, it is critically important to examine and evaluate new, bilateral and multilateral negotiations like the once fervent talks for the Central American Free Trade Agreement and the Free Trade Area of the Americas, and to question the extent to which they will enforce and expand the rights of migrant workers. (298) Indeed, the United States has had recent troubles in drafting and instituting a unanimous, hemispheric agreement. This has resulted from appeals by Latin American nations to implement, maintain and promote serious incentives for the enforcement of migrant workers' rights. (299) The United States would be wise to heed these calls.

(1.) EL NORTE (CBS/Fox Home Video 1983).

(2.) Tom Hamburger, Bush Seeks Law On Immigration To Open Door For More Workers, WALL ST. J., Dec. 26, 2003, at A2.

(3.) Kate E. Andrias, Symposium: Work in the 2U Century- A Look at the Contemporary Labor Movement: Gender, Work, and the NAFTA Labor Side Agreement, 37 U.S.F.L REV. 521, 525 (2003).

(4.) J. Gregory Robinson, Bureau of the Census, ESCAP II: Demographic Analysis Results, T. 3-5, A10-A11 (2001).

(5.) Sylvia R. Lazos Vargas, Missouri, The "War On Terrorism," and Immigrants: Legal Challenges Post 9/11, 67 MO. L. REV. 775, 779 (2002).

(6.) Id. at 777-78, n. 11.

(7.) Id.

(8.) Andrias, supra note 3, at 521.

(9.) Id.

(10.) See Terry Frieden, 18 Human Cargo Deaths in Texas, CNN.COM, May 14, 2003, available at http://www.cnn.com/2003/US/Southwest/05/14/truck.bodies/index.html (18 suspected illegal immigrants, including an infant, suffocated after they rode in the back of a trailer from Mexico to south Texas) (last visited Dec. 16, 2003); 14 Illegal Immigrants Found Dead in Arizona, CNN.COM, May 24, 2001, available at http://www.cnn.com/2001/US/05/24/border.deaths/index.html (14 immigrants found dead in a rugged area of Arizona along the U.S.-Mexico border) (last visited Dec. 16, 2003); Mexico Will Issue Survival Kits To Border Crossers. CNN.COM, May 24, 2001, available at http://archives.cnn.com/2001/WORLD/americas/05/24/migrant.survival/index.html (Mexico considered issuing survival kits to border crossers in 2001) (last visited Dec. 16, 2003).

(11.) Karen Fleshman, Abrazando Mexicanos: The United States Should Recognize Mexican Workers' Contributions To Its Economy By Allowing Them To Work Legally, 18 N.Y.L. SCH. J. HUM. RTS.. 237, 239 (2002).

(12.) Human Rights Watch, The Migrant Workers Convention: A Call for Ratification (2001), at http://www.hrw.org/press/2003/06/mwc0630031tr.htm. See generally Human Rights Watch, Unfair Advantage: Workers' Freedom of Association n the United States under International Human Rights Standards (2000); Human Rights Watch, Hidden In The Home: Abuse Of Domestic Workers with Special Visas In The United States, Vol. 13, No. 2 (2001).

(13.) Human Rights Watch, The Migrant Workers Convention: A Call for Ratification (2001), at http://www.hrw.org/press/2003/06/mwc063003ltr.htm.

(14.) Id.

(15.) Id.

(16.) Id.

(17.) David Wessel, Immigration's Attraction Lies in Boost To Economic Vitality, WALL ST. J., February 27, 2003, at A2.

(18.) See U.S. Dept. of Labor, Bureau of Labor Statistics at http://www.bls.gov/(last visited Dec. 15, 2003).

(19.) Fleshman, supra note 11, at 237.

(20.) Id. at 238.

(21.) Henk Overbeek, Neoliberalism and the Regulation Of Global Labor Mobility, 581 ANNALS AM. ACAO. POL. & SOC. SCI. 74, 75 (2002).

(22.) Id. at 75-76.

(23.) Maria Elena Bickerton, Prospects for a Bilateral Immigration Agreement with Mexico: Lessons from the Bracero Program, 79 TEX. L. REV. 895, 911 (2001); see also Overbeek, supra note 21, at 82. ("The movement of capital requires some mobility of people as well, for labor market purposes, but also for access to land and to markets.").

(24.) Michael J. Wishnie, Immigrant Workers and the Domestic Enforcement of International Labor Rights, 4 U. PA. J. LAB. & EMP. L. 529, 529 (2002).

(25.) Id; see also George Ross, Labor Versus Globalization, 570 ANNALS AM. ACAD. POL. & SOC. SCI. 78, 78 (2000) ("The transnationalization of markets places labor movements everywhere in newly troubling situations.").

(26.) Id. at 79.

(27.) Id. at 80 ("Labor protest against globalization has come first and foremost from those advanced capitalist societies where globalization is occurring against a historical background of labor movement nationalization.").

(28.) Id. at 82.

(29.) Id. at 79.

(30.) Overbeek, supra note 21, at 76-77 ("Sweatshops in [the U.S.] are the logical consequence of the global restructuring of production in the garment industry and the consequent competition for jobs between segments of the global reserve of labor."); see also Ross, supra note 25, at 83 ("The effectiveness of unions in setting labor standards had been contingent on their ability to engage in multi-employer collective bargaining.... [E]mployers (and economists) argue that such bargaining obstructed flexible adaptation to new technologies and rapidly changing international market opportunities.... [U]nions have thus lost leverage.").

(31.) Id. at 87.

(32.) Overbeek, supra note 21, at 81 (in the Americas, most of the regional integration processes ignore or sidetrack the question of the movement of people).

(33.) Id. at 83.

(34.) Bickerton, supra note 23, at 915.

(35.) Id.

(36.) Id. at 916. See also Joel Millman, Latin Americans Boost Home Coffers, WALL ST. J., March 17, 2003, at A2 (emigrant workers increase remittances, matching foreign direct investment).

(37.) Pew Hispanic Center Report, Remittance Senders and Receivers: Tracking the Transnational Channels, Nov. 24, 2003, at http://pewhispanic.org/files/reports/23.pdf. (Last visited March 4, 2005) (remittances to Latin America could total $30 billion in 2003, which is 50% higher than the total foreign direct investment expected in the region).

(38.) Bickerton, supra note 23, at 916; see also Overbeek, supra note 21, at 76 (the U.S. is attracted to the inexhaustible reservoir of cheap labor available in Latin America, new production technologies' allowing the separation of the labor-intensive parts of the production process from the capital-intensive parts, and new transport and communication technologies' facilitating the coordination of dispersed production and assembly establishments).

(39.) Overbeek, supra note 21 at 77.

(40.) Michael M. Hethmon, Symposium On Confronting Realities: The Legal, Moral, and Constitutional Issues Involving Diversity: Panel II: Immigration Policy: Diversity, Mass Immigration, and National Security after 9/11--an Immigration Reform Movement Perspective, 66 ALB. L. REV. 387, 406 (2003).

(41.) Id.

(42.) Id. at 402.

(43.) Id. at 399.

(44.) Jeannette Money, Human Rights Norms and Immigration Control, 3 UCLA J. INT'L & FOR. AFF. 497, 498 (Fall 1998/Winter 1999).

(45.) Id.

(46.) Hethmon, supra note 40, at 398.

(47.) Overbeek, supra note 21, at 81.

(48.) Demetrios G. Papademetriou, Immigration Symposium: Reflections on International Migration and Its Future, 40 BRANDEIS L.J. 933, 934-35 (2002).

(49.) Money, supra note 44, at 497

(50.) Papademetriou, supra note 48, at 935.

(51.) Id.

(52.) Money, supra note 44, at 500.

(53.) Id. (although there is an established right to leave one's country, there is no corresponding right to enter another country of one's choice).

(54.) Overbeek, supra note 21, at 79 (the outward flow of immigrants from Latin American nations has spurred an increase in the criminal enterprise of "Coyotes," or individuals who illegally guide prospective immigrants to the U.S., usually from points along the Mexican border, and often times at exorbitant prices).

(55.) Papademetriou, supra note 48, at 947.

(56.) Id.

(57.) Id. at 947-48.

(58.) Id. at 939.

(59.) Id.

(60.) Lance Compa, U.S. Workers Rights Are Being Abused, WASHINGTON POST, October 30, 2000, at A27, available at www.hrw.org/editorials/2000/lance-1030.htm (last visited March 4, 2005) [hereinafter U.S. Workers].

(61.) Papademetriou, supra note 48, at 939; see also Bickerton, supra note 23, at 916 (noting that in 1994, California voters approved Proposition 187, establishing a state screening system to prevent illegal aliens from obtaining state benefits, including public education).

(62.) Papademetriou, supra note 48, at 939.

(63.) Overbeek, supra note 21, at 85.

(64.) Hethmon, supra note 40, at 393 (diversity, defined as a respect for the values and identities of others, is seen as the social and political tool for reducing and ameliorating xenophobic attitudes).

(65.) Money, supra note 44, at 498.

(66.) Id. at 499 (rights-based immigration derives from the extension of human rights guarantees to [undocumented persons]).

(67.) Id. at 498.

(68.) Catherine Etheridge Otto, Tracking Immigrants in the United States: Proposed and Perceived Needs to Protect the Borders of the United States, 28 N.C.J. INT'L L. & COM. REG. 477, 480 (2002); See also The Immigration and Nationality Act: Amendments of 1965, Pub. L. No. 89-236, 79 Stat. 911, 1965 U.S.C.A.A.N. 883 (establishing permanent annual preferences for a limited number of skilled and unskilled immigrants coming to the U.S. to perform jobs for which no U.S. workers were readily available); Immigration Reform and Control Act, 8 U.S.C. 1324 (1986), amending 274A of the Immigration and Nationality Act (allowing undocumented immigrants to become legal permanent residents of the U.S., and thereafter sanctioning employers for hiring undocumented workers); Nicaraguan Adjustment and Central American Relief Act, Pub. L. No. 105-100, Title II, 203(e), 111 Star. 2160, 1997 U.S.C.A.A.N. 2160, 2199, amended by Pub. L. No. 105-139, 111 Star. 2644, 1997 U.S.C.A.A.N. 2644 (allocating 5,000 diversity visa numbers to certain undocumented persons from Central America who became eligible to adjust their status to permanent legal resident); Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (increasing the number of border patrol agents along the U.S.-Mexican border, and allocating funds to be used for new technology and fences along the Mexican border).

(69.) Otto, supra note 68, at 482 (Senator Ted Kennedy, chairman of the Senate Judiciary Immigration Committee, reacted by stating that he was "seriously concerned about the attempt to further reduce an immigrant's right to seek review of his or her case before an appellate judge").

(70.) Hethmon, supra note 40, at 401.

(71.) Michael Holley, Disadvantaged by Design: How The Law Inhibits Agricultural Guest Workers From Enforcing Their Rights, 18 HOFSTRA LAB. & EMP. L. J. 575, 588 (2001).

(72.) Laura K. Abel & Risa E. Kaufman, 21st Annual Edward V. Sparer Symposium Suing the Government: Velazquez and Beyond." Preserving Aliens' and Migrant Workers' Access to Civil Legal Services: Constitutional and Policy Considerations, 5 U. PA. J. CONST. L. 491, 511 (2003); see e.g., Mathews v. Diaz, 426 U.S. 67, 84-85 (1976) (ruling that state alienage classifications are subject to classic equal protection analysis).

(73.) See e.g., Plyler v. Doe, 457 U.S. 202, 223-30 (1982) (holding that Texas' denial of public education to undocumented children violated the equal protection rights of those children, and that because they have voluntarily entered the country in violation of federal law, undocumented aliens do not fulfill the criteria for a suspect class).

(74.) See Faye M. Kolly, Comment, The Right of Association: Enforcing International Labor Rights of Undocumented Workers, Via the Alien Tort Claims Act, 23 ST. LOUIS U. PUB. L. REV. 669, 677-80, 694 (2004).

(75.) See generally Jill Borak, A Wink and a Nod: The Hoffman Case and Its Effects on Freedom of Association for Undocumented Workers, 10 Hum. Rts. Br. 20, 20-23 (2003).

(76.) Luis Herrera-Lasso, The Impact of US. Immigration Policy on U.S.-Mexico-Relations, 3 UCLA J. INT'L L. & FOR. AFF. 357, 357 (Fall 1998/Winter 1999).

(77.) Id.

(78.) Id. at 358.

(79.) Id. at 359.

(80.) Id. at 357-58.

(81.) Id. at 358.

(82.) Bickerton, supra note 23, at 896.

(83.) RICHARD B. CRAIG, THE BRACERO PROGRAM: INTEREST GROUPS AND FOREIGN POLICY 38 (1971).

(84.) Bickerton, supra note 23, at 901.

(85.) Id. at 896.

(86.) Herrera-Lasso, supra note 76, at 359.

(87.) Holley, supra note 71, at 583.

(88.) Fleshman, supra note 11, at 241.

(89.) Bickerton, supra note 23, at 904.

(90.) Id. at 904, 909 (for wages, the bracero would not be paid less than U.S. workers doing similar work and never less than thirty cents an hour; they were also given the right to join American labor unions).

(91.) Id. at 904, 907 (instead of reducing illegal immigration, this provision actually increased unlawful entries into the United States from Mexico, as Mexican workers realized that it was easier to get a bracero contract by first crossing the border).

(92.) Fleshman, supra note 11, at 241-42.

(93.) Id. at 241

(94.) Bickerton, supra note 23, at 897; see also CRAIG, supra note 83, at ix n.1 ('Bracero' is a Spanish term meaning one who works with his arms. An English equivalent is 'field hand')

(95.) Id. at 898.

(96.) Id. at 899.

(97.) CRAIG, supra note 83, at 42-43.

(98.) Bickerton, supra note 23, at 904.

(99.) Holley, supra note 71, at 585.

(100.) CRAIG, supra note 83, at 28-29.

(101.) Id. at 29.

(102.) Bickerton, supra note 23, at 903.

(103.) Holley, supra note 71, at 584. (the law's safeguards included growers having to (1) offer domestic workers the same work at the same terms as Braceros; (2) to certify that they could not get domestic workers for the job before importing Braceros; and (3) obtain approval from the Labor Department of the prevailing to be paid to Braceros).

(104.) Bickerton, supra note 23, at 909-10.

(105.) Id. at 910.

(106.) Id. at 909

(107.) Holley, supra note 71, at 585.

(108.) Id. (only one in every 4,300 Braceros officially voiced a grievance).

(109.) Bickerton, supra note 23, at 914 (although labor unions usually oppose liberalizing employment immigration, the UFW is largely a Chicano organization that is likely to support a bilateral program with Mexico).

(110.) See Migrant and Seasonal Agricultural Worker Protection Act, Jan. 14, 1983, Pub. L. No. 97-470, 96 Stat. 2583 (1983) (codified as amended at 29 U.S.C. [section][section]1801-1872) (2003)); see also Holley, supra note 71, at 585-86.

(111.) Herrera-Lasso, supra note 76, at 364-65.

(112.) Holley, supra note 71, at 587.

(113.) Id. at 588.

(114.) Herrera-Lasso, supra note 76, at 360.

(115.) Id.

(116.) Id.

(117.) Id. at 362-63.

(118.) Herrera-Lasso, supra note 76, at 363.

(119.) Mary Lee Hall, Defending the Rights of H-2A Farmworkers, 27 N.C.J. INT'L. L. & COM. REG. 521, 527 (2002) (it was once proposed that Puerto Ricans might also fill the roles of harvesters. As U.S. citizens, however, it was feared that "Puerto Ricans would be free to leave the farm and seek other employment and, even worse, might decide to stay on the mainland, rather than returning to Puerto Rico.").

(120.) Id. at 528 (in the Eastern U.S., the importation of Caribbean workers was institutionalized when the H-2A program was created in the 1950's); see also Holley supra note 71, at 583.

(121.) Immigration and Nationality Act [section] 101 (a)(15)(H)(ii)(a), 8 U.S.C. [section] 1101(a)(15)(H)(ii)(a)(2003) [hereinafter INA] (the Department of Homeland Security is now charged with the duties of the Immigration and Naturalization Service; but see, Immigration and Nationality Act [section] 101(a)(15)(H)(ii)(b), 8 U.S.C. [section] 1101(a)(15)(H)(ii)(b)(2000). The H-2B program is for foreign non-agricultural workers).

(122.) Hall, supra note 119, at 524.

(123.) 8 C.F.R. [section] 214.2(h)(1)(i)(C)(2001) (employers must make a request to employ a specified number of unnamed aliens).

(124.) 8 C.F.R. 214.2(h); see also Hall supra note 119, at 522.

(125.) Fleshman, supra note 11, at 243

(126.) Id.

(127.) Hall, supra note 119, at 529.

(128.) Andrew Scott Kosegi, The H-2A Program: How the Weight of Agricultural Employer Subsidies Is Breaking the Backs of Domestic Migrant Farm Workers, 35 IND. L. REV. 269, 282 (2001).

(129.) Temporary Employment Of Aliens In The United States, 20 C.F.R. [section] 655.102 [paragraph] [paragraph] (a)-(b)(1), (2), (5), (6) (2003); see also Holley, supra note 71, at 592.

(130.) Temporary Employment of Aliens in the United States, 20 C.F.R. [section] 655.102 [paragraph] (b)(9) (2003) (the minimum wage is the highest of, either, the (1) federal or applicable state minimum wage, (2) the local job specific prevailing hourly wage, or (3) the H-2A "adverse effect" wage).

(131.) Hall, supra note 119, at 526.

(132.) Id.

(133.) Holley, supra note 71, at 576, 591 ("In 1996, growers contracted only about 15,000 H-2A workers. But by 1999, the use of H-2A workers nearly triples to about 42,000.").

(134.) Id. at 592.

(135.) Fleshman, supra note 11, at 242.

(136.) Id. at 243.

(137.) Id. at 242

(138.) Hall, supra note 119, at 522; see generally 8 C.F.R. [section] 214.2 (h)(5)(viii)(B).

(139.) Hall, supra note 119, at 522-23; see generally 8 C.F.R. [section] 214.2 (h)(5)(ix).

(140.) Fleshman, supra note 11, at 244.

(141.) Id.

(142.) Hall supra note 119, at 523; see generally 8 C.F.R. [section] 214.2(h)(5)(i)(B).

(143.) Holley, supra note 71, at 592.

(144.) Hall, supra note 119, at 522.

(145.) Id. at 523.

(146.) Id. at 527.

(147.) Holley, supra note 71, at 594.

(148.) See id. at 603.

(149.) Hall, supra note 119, at 531-32. See also 29 U.S.C. [section][section] 1801-72 (2003).

(150.) 29 U.S.C. [section][section] 1802(8)(B)(ii), 1803 (2003); See also Hall, supra note 119, at 532 (noting that this exclusion is actually a violation of the U.S.'s treaty obligations under the NAALC); Holley, supra note 71, at 605.

(151.) Hall, supranote 119, at 532.

(152.) Id.

(153.) Holley, supra note 71, at 595.

(154.) Hall, supra note 119, at 523.

(155.) Holley, supra note 71, at 577-78 The work is "physically taxing, requiring the day-long performance of repetitive motions while stooping, kneeling, walking or crawling.".

(156.) Id. at 578.

(157.) Id.

(158.) Hall, supra note 119, at 523.

(159.) Id. H-2A workers toil at the mercy of their employers; they do not complain or organize for fear of being fired and deported.

(160.) Hall, supra note 119, at 525.

(161.) Holley, supra note 71, at 580-81.

(162.) Otto, supra note 68, at 485.

(163.) Id. "The White House estimates that up to 200,000 illegal aliens could have been eligible to receive green cards under 245(i), most of who are from Mexico." Id. at 285 n.67.

(164.) Fleshman, supra note 11, at 265. "The Mexican government would also deter future immigration by taking undocumented immigrants' communal land rights away and making their family members ineligible for social welfare programs." Id. at 266.

(165.) The 9/11 hijackers had applied for, received and overstayed their visas to study in the U.S. See Muneer I. Ahmad, A Rage Shared By Law: Post-September-11 Racial Violence as Crimes of Passion, 92 CAL. L. REV. 1259, 1314-15 (2004).

(166.) Exec. Order. No. 13,288, 66 Fed. Reg. 51,812 (Oct. 10, 2001).

(167.) Otto, supra note 68, at 486.

(168.) Uniting and Strengthening America By Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001, Pub. L. No. 107-56, 115 Stat. 272 (2001) (hereinafter PATRIOT Act). The Act was passed with little review and virtually no dissent from U.S. legislators. Otto, supra note 68, at 490-91

(169.) Otto, supra note 68, at 490.

(170.) Enhanced Border Security and Visa Entry Reform Act of 2002, 8 U.S.C. [section] 1701(2005) (hereinafter Border Security Act); See also Otto, supra note 68, at 500. The "plan is to first focus on locating Arab and Muslim men who have overstayed their visas. Of the 314,000 individuals who are deportable due to expired visas, 6,000 of them are men from the Middle East and South Asia."

(171.) Otto, supra note 68, at 502.

(172.) Eduardo Porter, No Going Back." Tighter Border Yields Odd Result: More Illegals Stay, WALL ST. J., Oct. 10, 2003, at A1. See also Vargas, supra note 5, at 781 (noting that few departments, including North Carolina and Las Vegas, have complied with Ashcroft's requests).

(173.) Id. at 782

(174.) Bickerton, supra note 23, at 914-15.

(175.) Id. at 915.

(176.) Id.

(177.) Papademetriou, supra note 48, at 947.

(178.) Vargas, supra note 5, at 804-05.

(179.) Id. at 805.

(180.) Id. at 805 n. 144 (citing Jim Sanders, Immigrant-license Bill Returns to Davis, Sacramento Bee, Aug. 21, 2002, at A1). "Terrorism is the type we've seen from the Timothy McVeighs and the Ted Kaczynskis ... or people involved in anthrax- not farm workers from the Central Valley or restaurant workers."

(181.) Hamburger, supra note 2.

(182.) Bush Signs extension of Patriot Act (available at http://www.cnn.com/2005/POLITICS/12/30/bush.patriot.reut/index.html), last checked January 1, 2006.

(183.) Legal Serv. Corp. v. Velazquez, 531 U.S. 533, 548-49 (2001); See also Abel & Kaufman, supra note 72, at 491-92.

(184.) Abel & Kaufman, supra note 72, at 497-98.

(185.) Id. at 492.

(186.) Id.

(187.) Id. at 493.

(188.) Hoffman Plastic Compounds" v. Nat'l Labor Relations Bd., 535 U.S. 137, 144 (2002) [hereinafter Hoffman]. Employers who violate the NLRA rights of undocumented workers may be subject to other significant sanctions. See also National Labor Relations Act (NLRA), 29 U.S.C. [section] 158(a)(3). The NLRA "regulates the labor-management relationship for many employees and companies in the [U.S.] and provides most private sector employees the right to organize, bargain collectively, and engage in peaceful strikes and picketing." Borak, supra note 75, at 20. Supervisors and managers, independent contractors, employees of certain small businesses, domestic service workers, agricultural workers, and public sector employees are exempt from protection under the NLRA.

(189.) Hoffman, 535 U.S. at 140.

(190.) Id.(noting that IRCA established an extensive "employment verification system, ... designed to deny employment to aliens who (a) are not lawfully present in the United States, or (b) are not lawfully authorized to work in the United States. [section] 1324a-c also makes it a crime for an unauthorized alien to subvert the employer verification system by tendering fraudulent documents.").

(191.) Id. at 141.

(192.) Sure-Tan, Inc. v. Nat'l Labor Relations Bd., 467 U.S. 883, 104 S. Ct. 2803 (1984).

(193.) Hoffman, 535 U.S. at 145. Similarly, with respect to backpay, the Court stated, "The employees must be deemed 'unavailable' for work (and the accrual of backpay therefore tolled) during any period when they were not lawfully entitled to be present and employed in the United States. In light of the practical workings of the immigration laws, such remedial limitations were appropriate even if they led to 'the probable unavailability of the NLRA's more effective remedies.'" (internal quotations omitted)

(194.) Id. at 146. For an alien to be "authorized" to work in the United States, he or she must possess "a valid social security account number card," or "other documentation evidencing authorization of employment in the United States which the Attorney General finds, by regulation, to be acceptable for purposes of this section." 8 U.S.C. [section] [section] 1324a(b)(C)(i)-(ii)(2005).

(195.) Borak, supra note 75, at 20.

(196.) Hoffman, 535 U.S. 137 at 149.

(197.) Id.

(198.) Borak, supra note 75, at 21.

(199.) Hoffman, 535 U.S. at 153.

(200.) Id.

(201.) Id. at 154.

(202.) Id. The present case concerns a discharge that was not for "good cause." The discharge did not sever any connection with an unfair labor practice. Indeed, the discharge was the unfair labor practice. The Attorney General, charged with immigration law enforcement, has told us that the Board is right.

(203.) Id. at 155-57 (citing NLRB v. Apollo Tire Co., 604 F.2d 1180, 1184 (CA9 1979) (concurring opinion)).

(204.) Borak, supra note 75, at 20.

(205.) Abel & Kaufman, supra note 72, at 519.

(206.) Id. at 493.

(207.) Id. at 493-94.

(208.) Id. at 494.

(209.) Id. at 495.

(210.) 28 U.S.C. [section] 1350 (2005) [hereinafter ATCA] (instituting the right of action and federal jurisdiction over "any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States").

(211.) Judiciary Act, ch. 20, 9, 1 Stat. 73, 76 (1789).

(212.) Wishnie, supra note 24, at 532.

(213.) Id. at 534. See also Jama v. Immigration & Naturalization Serv., 22 F. Supp. 2d 353 (D.N.J. 1998) (holding that nothing in the statute restricts its application to human rights violations committed extraterritorially.).

(214.) Wishnie, supra note 24, at 534. See also Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88 (2d Cir. 2000) (reversing dismissal of ATCA claims for torture, imprisonment and killings, allegedly performed by Nigerian authorities at the instigation of private oil companies.); Tel-Oren v. Libyan Arab Republic, 726 F. 2d 774 (D.C. Circ. 1984) (holding that individuals may be liable for piracy and slave-trading under the ATCA); Bao Ge v. Li Peng, 201 F. Supp. 2d 14, 22 (D.C. Cir. 2000) (ruling that "the Court will accept the Second Circuit's conclusion that ATCA jurisdiction extends to private parties for egregious acts of misconduct."); Doe v. Unocal Corp., 110 F. Supp. 2d 1294 (C.D. Cal. 2000) (holding that non-state actors may be liable for slavery and forced labor under ATCA, but granting summary judgment for defendants on facts of the case); Iwanowa v. Ford Motor Co., 67 F. Supp. 2d 424 (D.N..J. 1999) (holding that non-state actors may be liable for a forced labor claim under ATCA but dismissing on other grounds).

(215.) Kadic v. Karadzic, 70 F.3d 232, 239 (2d Cir. 1995).

(216.) Id.

(217.) Filartiga v. Pena-Irala, 630 F.2d 876, 877-78(2d Cir. 1980).

(218.) Id. at 878.

(219.) Id. at 880.

(220.) Id. at 882.

(221.) In re Union Carbide Corp. Gas Plant Disaster at Bhopal, 809 F.2d 195 (2nd Cir. 1987); See also Bano v. Union Carbide Corp., 273 F.3d 120 (2d Cir. 2001).

(222.) Id. at 197.

(223.) Id. at 19798.

(224.) See Patrickson v. Dole Food Co., 251 F.3d 795, 798, 808-09 (9th Cir. 2001). See also Jim Carlton, Unocal Trial on Slave Labor Claims Is Set To Start Today, WALL ST. J., Dec. 9, 2003, at A19 (reporting that Villagers from Myanmar are demanding financial compensation from the U.S. oil giant for allegedly having to endure slave-work conditions in the early to mid-1990's on a gas pipeline where Unocal has held a minority interest.)

(225.) Wishnie, supra note 24, at 538.

(226.) Id. at 539.

(227.) Id. at 540. See 29 U.S.C. [section] 152(3) (2005) (stating that "the term 'employee' ... shall not include any individual employed ... in the domestic service of any family or person at his home;" this excludes agricultural workers from NLRA).

(228.) THEODORE H. MORAN, BEYOND SWEATSHOPS: FOREIGN DIRECT INVESTMENT AND GLOBALIZATION IN DEVELOPING COUNTRIES, 101 (2002).

(229.) ILO, Declaration Concerning the Aims and Purposes of the International Labour Organization, Oct. 9, 1946, art. I, 15 U.N.T.S. 35. (announcing that "labor is not a commodity," the Declaration proclaims:

"Believing that experience has tully demonstrated the truth of the statement in the Constitution of the International Labour Organization that lasting peace can be established only if it is based on social justice, the Conference affirms that ... all national and international policies and measures, in particular those of an economic and financial character, should be judged in this light and accepted only in so far as they may be held to promote and not to hinder the achievement of this fundamental objective");

(230.) Moran, supra note 228, (quoting Art. 2, ILO Declaration on Fundamental Principles and Rights at Work, International Labor Conference, 86th Session, Geneva, June 1998).

(231.) Id. See also Your Voice At Work, Global Report, Follow-Up to the ILO Declaration on Fundamental Principles and Rights at Work (Geneva 2000) p. 1, available at http://www.ilo.org/dyn/declaris/DECLARATIONWEB.DOWNLOAD_BLOB? Var_DocumentID=1921.

(232.) Lance Compa, Exceptions and Conditions: The Multilateral Agreement On Investment and International Labor Rights: A Failed Connection, 31 CORNELL INT'L L.J. 683, 695 (1998).

(233.) Convention Concerning Migration for Employment (ILO No. 97) (revised 1949), adopted Jan. 7, 1949 (entered into force Jan. 22, 1952), in International Labour Conventions And Recommendations, 1919-81 (1982), available at http://www.ilo.org/ilolex/cgi-lex/convde.pl?C097 (last visited Feb. 21, 2005);see also Hall supra note 119, at 522.

(234.) Hall, supra note 119, at 522.

(235.) Compa, supra note 232, at 706-07.

(236.) Id. Every nation must report annually on its progress of ratifying ILO conventions.

(237.) Adelle Blackett, Whither Social Clause? Human Rights, Trade Theory and Treaty Interpretation, 31 COLUM. HUM. RTS. L. REV. 1, 34 (1999); see also Michelle E. Gorden, Haitian Foreed Labor in the Dominican Republic, 15 COMP. LAB. L.J. 206, 209 (1994).

(238.) Borak, supra note 75, at 22.

(239.) Id. at 23; see also Fleshman, supra note 11, at 262 ("there has been a complete, 180 degree shift in the way the AFL-CIO and other unions treat immigrants").

(240.) Compa, supra note 232, at 695.

(241.) G.A. Res. 217, U.N. GAOR, 3rd Sess., pt.l, U.N. Doc. A/810 (1948). Art. 23(1) declares, "everyone has the right to work, "and Art. 23(4) states that "everyone has the right to form and to join trade unions for the protection of his interests.'"

(242.) G.A. Res. 2200, U.N. GAOR, 21st Sess., Supp. No. 16, at 52, U.N. Doc. A/6316 (1966).

(243.) Id. at 49.

(244.) Human Rights Watch, Migrant Workers" Need Protection: U.N. Treaty Comes Into Force (July 1, 2003) [hereinafter Migrant Workers], available at http://www.hrw.org/press/2003/06/mwc063003.htm. They are "Azerbaijan, Belize, Bolivia, Bosnia-Herzegovina, Cape Verde, Columbia, Ecuador, Egypt, El Salvador, Ghana, Guatemala, Guinea, Mexico, Morocco, the Philippines, Senegal, Seychelles, Sri Lanka, Tajikistan, Uganda and Uruguay."

(245.) Id.

(246.) Id.

(247.) Press Release, United Nations, Convention On The Protection Of Rights Of Migrant Workers To Enter Into Force Next (July, March 19, 2003) available at http://www.unhchr.ch (last visited Feb. 21, 2005).

(248.) G.A. Res. 158, U.N. GAOR, 45th Sess., 69th mtg., U.N. Doc. A/RES/45/158 (1990), art. 42, available at http://www.unhchr.ch/html/menu3/b/m_mwc_p4.htm.

(249.) Id. at art. 15.

(250.) Borak, supra note 75, at 21-22.

(251.) Human Rights Watch, supra note 13.

(252.) Migrant Workers, supra note 244.

(253.) Id.

(254.) Id.

(255.) Andrias, supra note 3, at 525.

(256.) Karla Shantel Jackson, Is Anything Ever Free? NAFTA's Effect On Organizing Drives And Minorities And The Potential Of FTAA Having A Similar Effect, 4 SCHOLAR 307, 323 (2002). (The fact that the NAFTA itself did not initially contain labor provisions indicate efforts by labor rights proponents to append the agreement to reflect the importance of such standards).

(257.) North American Agreement on Labor Cooperation, Sept. 14, 1993, 32 I.L.M. 1499 (1993) at art. 49 [hereinafter NAALC].

(258.) Id. at Annex 1 (Labor Principles).

(259.) Id. at sec. C., art. 15.

(260.) Compa, supra note 232, at 704. See also NAALC, supra note 257, art. 29-39(4)(b), Annex 39. The complainant party may make a "request for an Arbitral Panel," which "may, where warranted, impose a monetary enforcement assessment."

(261.) John P. Isa, Testing the NAALC's Dispute Resolution System: A Case Study, 7 AM. U.J. GENDER SOC. POL'Y & L. 179, 191-92. (1998/1999) (noting that Article Four "does not provide any mechanisms to enforce such a right of action.")

(262.) NAALC, supra note 257, at art. 41.

(263.) Holley, supra note 71, at 621 (citing NAALC, supra note 257, at 1503).

(264.) Compa, supra note 232, at 705.

(265.) Id. at 708.

(266.) Id. at 689.

(267.) Id.

(268.) Andrias, supra note 3, at 552.

(269.) Id.

(270.) Jerome Levinson, Certifying International Workers Rights." A Practical Alternative, 20 COMP. LAB. L. & POL'Y 401, 403 (1999). The U.S. agreed to delete from the NAALC provisions that provided for the possibility of trade sanctions and monetary penalties for a persistent failure of a party to the NAALC to enforce its own labor laws with respect to freedom of association, collective bargaining, and the fight to strike. See also Wishnie, supra note 24, at 554. The NAALC does not directly bind private employers.

(271.) See Ross, supra note 25, at 86. See also Andrias, supra note 3, at 553. Freedom of association, the right to bargain collectively, and the right to strike are exempt from all the mechanisms under the agreement except for the consultation process. The only remedy available for violations regarding forced labor, employment discrimination, equal pay for men and women, migrant worker protection, and workers' compensation is a consultation and/or expert evaluation process

(272.) See Ross, supra note 25, at 87.

(273.) Wishnie, supra note 24, at 554.

(274.) See Ross, supra note 24, at 86.

(275.) Sanra Polaski, Mexican Employment, Productivity and Income a Decade after NAFTA, at http://www.carnegieendowment.org/publications/index.cfm?fa-view&id-1473# (last visited Feb. 25, 2004).

(276.) Levinson, supra note 270, at 403.

(277.) Isa, supra note 261, at 204.

(278.) Deborah Greitzer, Thirteenth Annual National Labor Law Writing Competition: Cross-Border Responses to Labor Repression in North America, 1995 DETROIT C.L. REV. 917, 921 (1995) (quoting Constitution Politica de los Estados Unidos Mexicanos, Art.123 (Mex.), translated in Albert P. Blaustein & Gisbert H. Flanz, Constitutions of the Countries of the World97 (1982).

(279.) Pollack v. Williams, 322 U.S. 4, 18 (1944).

(280.) U.S. Workers, supra note 60.

(281.) Papademetriou, supra note 48, at 938.

(282.) Hethmon, supra note 40, at 409.

(283.) Id. at 407.

(284.) Fleshman, supra note 11, at 257. See also Fact Sheet, U.S. Department of Justice, U.S. Citizenship and Immigration Services at http://www.ins.gov/graphics/aboutins/statistics/IMM2001.pdf (last checked December 14, 2003). In 2001, almost twenty percent of immigrants legally admitted to the United States came from Mexico.

(285.) Fleshman, supra note 11, at 257.

(286.) Sarah Schaefer Munoz, Bush Seeks Safe Ground on Immigration, WALL ST. J., Dec. 7, 2004, at A4.

(287.) Mary Anastasia O'Grady, At Last, A Bill For Treating Immigrants Humanely, WALL ST. J., Aug. 29, 2003, at A9.

(288.) Id.

(289.) Munoz, supra note 286.

(290.) AFL-CIO, Bush Immigration Plan Creates a Permanent Underclass of Workers', Jan. 7, 2005, at http://www.aflcio.org/issuespolitics/immigration/ns01072004.cfm.

(291.) Borak, supra note 75, at 20.

(292.) Eduardo Porter, Banks Can Accept Foreign ID 's, WALL ST. J., Sept. 19, 2003, at A12.

(293.) Eduardo Porter, Mexico Adds Lobbying Muscle With Mexican-American's Help, WALL ST. J., Oct. 3, 2003, at A5 (quoting that "Migrants are Mexico's best allies.").

(294.) U.S. Workers, supra note 60.

(295.) Id.

(296.) Andrias, supra note 3, at 530.

(297.) Id.

(298.) Bush Signs controversial CAFTA Bill, at http://www.cnn.com/2005/POLITICS/08/02/bush.cafta.ap/index.html

(299.) Bickerton, supra note 23, at 918.

Juan Carlos Linares is an Assistant Corporation Counsel for the City of Chicago Department of Law, in the Finance and Economic Development division. He also teaches Latinos and the Law as an Adjunct Professor at Northeastern Illinois University, and has volunteered as a Pro Bono Attorney for the National Immigrant Justice Center. This article was written for a spring 2005 lecture series on race and ethnicity at Northeastern Illinois University.