49:1 Enforcing Against the Enforcers: Ensuring Immigration Compliance Through Civil RICO

Abstract

The United States has struggled to formulate a solution for the number of undocumented immigrants who live within its borders. Labeled as illegal aliens, they have either entered the United States without authorization or violated the terms of their entry. The proposed solutions to their presence are varied. Some have suggested normalization measures for certain categories of undocumented immigrants, which others have criticized as “backdoor amnesty.” A number of states and municipalities have passed local immigration regulations and ordinances, which they have defended in federal court. But more notable has been the discussion of the private enforcement of immigration laws.

 

In practice, the shift from public to private enforcement is most visible in an employer’s responsibility to ensure a legally authorized workforce. The federal government mandates that an employer verify the work authorization of his employees and threatens sanctions for noncompliance. Courts have interpreted these measures as having twin goals: (1) discouraging illegal immigrants from entering the United States; and (2) protecting authorized workers from having to jockey for jobs vis-à-vis their undocumented counterparts. This private enforcement model has failed as businesses continue to illegally employ unauthorized workers. In response to employers’ abdication of their role as private enforcers, individuals are using a provision within the Racketeer Influenced and Corrupt Organization Act (RICO) to file civil lawsuits against employers of undocumented workers.

 

Part II of this Comment presents an overview of the success of private enforcement of immigration law in the employment context. Part III explains the mechanics of RICO as a cause of action, explores its 1996 immigration-related amendment, and discusses cases where civil RICO plaintiffs have successfully survived summary judgment. Part IV discusses the recent U.S. Supreme Court ruling in Anza v. Ideal Steel Supply Corp., which poses a potential roadblock to civil RICO actions targeted at employers of unauthorized immigrants. Finally, Part V concludes by showing how civil RICO lawsuits, as private enforcement mechanisms, are both appropriate and desirable in the protection of legally authorized workers and unauthorized immigrants.