In Brief – The Brennan Center participated in an amicus brief, along with 49 other U.S. labor, civil rights and immigrants’ rights organizations, in support of a petition by the Mexican government to the Inter-American Court of Human Rights. The Mexican government’s petition alleged that various types of U.S. discrimination against undocumented immigrants violate international human rights instruments. The amicus brief to which the Brennan Center signed on argued that the deprivation of legal assistance for undocumented and H-2B workers left those workers unable to protect their rights and that U.S. employment protection laws are discriminatory on the basis of citizenship and immigration status. In a 2003 Advisory Opinion, the Court agreed, stating, “[W]hen fear of deportation or denial of free public legal services to immigrants prevents immigrants from asserting their rights, the right to judicial protection is violated.”
Procedural History – In May 2002, Mexico petitioned the Inter-American Court of Human Rights to issue an advisory opinion on U.S. discrimination against migrant workers. Numerous countries, institutions, universities, and non-governmental organizations, including the Brennan Center, submitted amicus briefs in support of Mexico’s request for an advisory opinion and the Court’s establishment of fundamental worker protections for all workers. In January 2003, the U.S. presented a note informing the Court that it would not submit any comments. In February and June 2003, the Court convened hearings, during which member states, the Inter-American Commission on Human Rights, and amici presented oral arguments. The court issued its advisory opinion on September 17, 2003.
Questions Presented – Is the U.S. in violation of the “principles of legal equality, non-discrimination and the equal and effective protection of the law” that are granted to workers by international human rights law?
In Detail – In May 2002, Mexico petitioned the Inter-American Court of Human Rights to issue an advisory opinion on U.S. discrimination against migrant workers.
In response, 50 U.S. labor, civil rights, and immigrants’ rights organizations, including the Brennan Center, filed an amicus brief with the Court, in support of Mexico’s petition and arguing that the United States, at the federal and state levels, is in violation of international human rights law because domestic employment protection laws discriminate against migrant workers on the basis of citizenship and immigration status.
According to the brief, this issue is of the utmost importance because the United States has more migrants, approximately 5.3 million, than any other country in the world and because these workers are some of the lowest paid and poorly treated in the U.S. Undocumented workers are some of the worst off because they so frequently work in sectors characterized by low salaries and high risk.
The brief argues that discriminatory behavior that limits the labor rights of migrant workers has included threats made to workers that they would be reported to the Immigration and Naturalization Service (INS) and ineffective penalties for employers who hire unauthorized workers. However, because employers rarely are penalized by the INS, they can hire undocumented workers and benefit from these workers’ illegal employment by threatening to inform the INS of their illegal residency in the U.S.
Ultimately, the brief argues that U.S. laws that discriminate on the basis of alienage status are illegal because international law has established that if an undocumented or unauthorized migrant worker becomes employed, “his nationality and his legal status are irrelevant for the purpose of protecting an individual in his place of employment and preventing his exploitation.”
In 2003, the Inter-American Court of Human Rights issued a unanimous advisory opinion. It reaffirmed that there are fundamental human rights of equality and non-discrimination that must be respected by both domestic and international law. According to the Court, any infringement of these rights by a state is a violation of international law and responsibility, even if the state is not party to a specific international treaty. These rights, which include the right to due process of law, apply to all persons, including migrant workers and undocumented workers, no matter the specific circumstances. And workers’ rights can not be forfeited by a state in favor of domestic policy. It is the state’s responsibility to ensure these rights for all workers who are employed, said the Court, even if the government is not itself the employer. The state ultimately is responsible for complying with international law and cannot violate fundamental rights through domestic policy, determined the Court.
Signatories to Amicus Brief – ACORN (Association of Community Organizations for Reform Now); American Federation of Labor and Congress of Industrial Organizations (AFL-CIO); American Federation of State, County and Municipal Employees (AFSCME); Asian Law Caucus; Asian American Legal Defense and Education Fund (AALDEF); APALC (Asian Pacific American Legal Center); Brennan Center for Justice at New York University School of Law; California Rural Legal Assistance Foundation; CASA of Maryland; Casa Marianella (Texas); CATA (Farmworkers Support Committee) (New Jersey); CAUSA (Coalition of grassroots immigrants’ rights organizations in Oregon); Center on Policy Initiatives – California; Center for Economic and Social Rights (Brooklyn, NY); The Citizenship Project (Salinas, CA); Chicago Interfaith Committee on Worker Issues; Coalition for the Human Immigrants Rights of Los Angeles; El Centro, Inc., Kansas City; Employment Unit at Greater Boston Legal Services (Massachusetts); Equal Justice Center (Texas); D.C. Employment Justice Center; Farmworker Justice Fund, Inc.; Friends of Farmworkers, Inc. (Pennsylvania); Florida Immigrant Advocacy Center; Hotel Employees and Restaurant Employees International Union; Hispanic Organizations Leadership Alliance; Labor Council for Latin American Advancement (LCLAA); IUE-CWA, the Industrial Division of the Communication Workers of merica, AFL-CIO; International Labor Rights Fund; Legal Aid Society – Employment Law Center (California); Migrant Farmworker Justice Project (Florida); National Asian Pacific American Legal Consortium (NAPALC); National Coalition of Hispanic Organizations; The National Council of La Raza (NCLR); National Employment Lawyers Association (NELA); National Immigration Project of the National Lawyers’ Guild; National Lawyers Guild Labor & Employment Committee; Immigrants Legal Assistance Project – North Carolina Justice and Community Development Center; Oregon Law Center, Inc.; Oregon Public Employees Union SEIU Local 503; SEIU Local 503 Latino Caucus; PCUN – Pineros y Campesinos Unidos del Noroeste (Oregon); Puerto Rican Legal Defense & Education Fund; Robert F. Kennedy Memorial Center for Human Rights; Service Employees International Union; Sweatshop Watch; International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW); United Electrical, Radio and Machine Workers of America (UE); Teamsters Local 890; The Workplace Project; Virginia Justice Center for Farm and Immigrant Workers; United Farmworkers Union, AFL-CIO