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Rosa v. Partners in Progress3/4/2005
concluded that plaintiff would have obtained employment in the United States, where he has continuously resided since the accident, if he had not been severely injured by his fall. And the fact is, undocumented aliens do obtain work in the United States." Id. at 507.
We note that Hoffman is not solely responsible for this inconsistency, as courts had produced inconsistent results prior to Hoffman. For example, in Rodriguez v. Kline, a California appellate court, relying upon IRCA, ruled that an illegal alien may only recover lost United States earnings when he can "demonstrate to the court's satisfaction that he has taken steps that will correct his deportable condition." Rodriguez v. Kline, 232 Cal. Rptr. 157, 158 (Ct. App. 1986). By contrast, in Hernandez v. M/V Rajaan, 848 F.2d 498, 500 (5th Cir. 1988) (per curiam), the Fifth Circuit Court of Appeals ruled that once an illegal alien who was injured on the job has "prove his prior wages in the United States," he may recover such earnings from his negligent employer based upon his past earnings stream unless the employer can establish that he was about to be or would surely be deported.
Having reviewed the current legal framework, we now begin our analysis of the second transferred question. No defendant in this case argues that IRCA preempts New Hampshire common law. Compare Sanango, 788 N.Y.S.2d at ____ (holding that because of the ruling in Hoffman, federal law under IRCA preempts "New York law, to the extent that it would permit plaintiff to recover the wages he would have earned illegally in the United States") with Balbuena v. IDR Realty, 787 N.Y.S.2d 35, 36-37 (App. Div. 2004) (Ellerin, J., dissenting) (State common law on the recoverability of lost wages in tort actions does not "conflict with or stand as an obstacle to the accomplishment of IRCA's objectives" because it does not "address the employment of illegal aliens in the United States" (quotation omitted)).
While we presume that Hoffman is not controlling here, and although the aforementioned conflicting decisions provide no clear path, we find both sources instructive. One argument advanced by Partners against allowing illegal aliens to recover lost United States earnings is that such a policy would undermine IRCA, because providing illegal aliens with the potential to recover lost earnings, would, in theory, increase the economic incentives that draw illegal aliens to this country. But, as a federal district court made clear in Singh v. Jutla, 214 F. Supp. 2d 1056, 1062 (N.D. Cal. 2002):
very remedy extended to undocumented workers . . . provides a marginal incentive for those workers to come to the United States. It is just as true, however, that every remedy denied to undocumented workers provides a marginal incentive for employers to hire those workers. The economic incentives are in tension. Given this tension, the courts must attempt to sensibly balance competing considerations.
A policy that does not permit recovery will marginally lower the costs for the employment of illegal aliens, and "employers might find it economically advantageous to hire . . . undocumented workers and run the risk of sanctions under the IRCA." Patel v. Quality Inn South, 846 F.2d 700, 704 (11th Cir. 1988). Likewise, a policy that does permit recovery will marginally increase an illegal alien's incentive to enter the country, knowing that should he be injured, he would be compensated at United States wage levels.
The strongest argument against the recovery of lost United States earnings is that a "contrary rule, of course, would allow someone who is not lawfully available for future work in the United States to receive compensation to which h
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