Framing and contesting unauthorized work

• Author: Angela D. Morrison
• Position: Associate Professor of Law, Texas A&M University School of Law
• Pages: 651-692

FRAMING AND CONTESTING UNAUTHORIZED

WORK

ANGELA D. MORRISON*

ABSTRACT

Unauthorized workers face precarity in the workplace and the threat of forced

expulsion from their communities. Some of the reasons for that precarity result

from how the law frames unauthorized workers. The law views unauthorized

workers as lacking full human or civil rights, as “unauthorized,” to the exclusion

of their other identities. The legal system also creates a binary that views unau-

thorized workers as either criminals who are complicit in their exploitation or

passive victims for employers to exploit. This Article draws on social movement

literature to theorize the processes that result in this framing and to explore how

immigrant social movements have contested that framing. That contestation has

led to less precarity and greater social membership for unauthorized workers.

First, this Article demonstrates that the law relies on a moral deservedness

frame that has contributed to unauthorized work’s precarity and made unau-

thorized workers’ social membership more tenuous. Second, the Article

argues that by contesting the law’s moral deservedness frame, movement

actors have decreased workplace precarity and increased social membership.

They have called on frames that center on workers’ human and civil rights, and

their identities as family members and workers. Movement actors have worked

around and through the law to empower unauthorized workers to engage in

claims-making and organize worker co-operatives that provide workplace pro-

tections. They also have engaged in direct action and acts of civil disobedience

that have led to greater mobilization and participation in the movement. Finally,

immigrant rights organizations have changed the law by lobbying for policy

changes and changes to state laws that benefit unauthorized workers. Besides

reducing precarity, the contestation itself can become a source of social

* Associate Professor of Law, Texas A&M University School of Law. Thanks to Xóchitl Bada,

Shannon Gleeson, Llezlie Green, Michael Z. Green, Kate Griffith, Stacy Hawkins, Camille He

´bert, Kit

Johnson, Luz Herrera, Brian Larson, Jennifer Lee, Shirley Lin, Kathleen Kim, Glynn Lunney, Brendan

Maher, Fatma Marouf, Daniel Morales, Ce

´sar Rozado Ma

´rzan, Maria Ontiveros, Sachin Pandya, Huyen

Pham, Nancy Plankey Videla, Jessica Roberts, Leticia Saucedo, David Simson, Daiquiri Steele, and

Nancy Welsh for their helpful comments on the paper. Thanks also to the participants of the AALS

Employment Discrimination Law Section Workshop Paper Series, the participants of the Texas A&M

Law Faculty Scholarship Retreat, and the participants of the Precarious Workplace Workshop for allow-

ing me to present the paper. Finally, thanks to Destin Germany for his research assistance. All errors are

my own. © 2022, Angela D. Morrison.

651

membership for unauthorized workers. In effect, the contestation allows unau-

thorized workers to exercise their political voices.

TABLE OF CONTENTS

INTRODUCTION ......................................... 652

I. SOCIAL MOVEMENTS, MOBILIZATION, AND FRAMING . . . . . . . . . . . . 655

A. Social Movements & Framing . . . . . . . . . . . . . . . . . . . . . 655

B. Frames in the Immigrant Rights Movement . . . . . . . . . . . . 658

1. Rights ................................... 659

2. Identity-based . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 659

3. Moral Deservedness......................... 660

II. THE LAW’S FRAMING OF UNAUTHORIZED WORKERS . . . . . . . . . . . . 661

A. The Law as a Framing Device for Social Movements . . . . . 661

B. The Law’s Framing of Unauthorized Workers . . . . . . . . . . 662

1. Rights Framing. . . . . . . . . . . . . . . . . . . . . . . . . . . . 663

2. Identity Framing........................... 666

3. Moral Deservedness Framing . . . . . . . . . . . . . . . . . . 671

C. Impact of the Law’s Frame, More Precarity. . . . . . . . . . . 675

III. IMMIGRANT RIGHTS MOVEMENTS CONTESTING THE LAW’S FRAMES . . 677

A. Working Through and Around the Law . . . . . . . . . . . . . . . 679

B. Confronting and Directly Challenging the Law . . . . . . . . . 683

C. Changing the Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 686

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 692

INTRODUCTION

Millions of noncitizens

1

who lack immigration status live and work in the

United States. Recent estimates place the unauthorized population at 10.5

1. This Article uses the term “noncitizen” rather than “alien.” For a discussion of the term “alien”

and its use to otherize undocumented migrants, see Fatma E. Marouf, Regrouping America: Immigration

Policies and the Reduction of Prejudice, 15 HARV. LATINO L. REV. 129, 133–37 (2012). See also D.

Carolina Nú~

nez, War of the Words: Aliens, Immigrants, Citizens, and the Language of Exclusion, 2013

BYU L. REV. 1517 (2014) (employing corpus linguistics to demonstrate negative connotations of the

term “alien” and arguing that using the term serves to dehumanize noncitizens).

652 GEORGETOWN IMMIGRATION LAW JOURNAL [Vol. 36:651

million people.

2

Noncitizens without immigration authorization make up

4.6% of the workforce.

3

And the majority of the unauthorized population are

long-term residents, with the median duration for length of residence at fif-

teen years.

4

This combination means that many individuals who U.S. immi-

gration law deems “unauthorized,” are, in fact, long-term residents with

significant ties to the United States.

But noncitizens who lack immigration status face several barriers when it

comes to working in the United States. Some people who lack immigration

status have work authorization because immigration officials have decided to

defer their removal from the United States.

5

Others do not.

6

For people who

lack work authorization, finding employment is fraught even though working

without authorization does not violate any law.

7

If an employer hires them

despite their lack of employment authorization, then, in theory, the employer

is the one on the hook for violating federal immigration law and the one who

faces potential criminal punishment and civil fines.

8

But the worker still faces

the threat of deportation for being in the United States without immigration

status. If the worker obtained work using false documents, the worker not

only faces deportation but also criminal sanctions.

9

Finally, even if an unau-

thorized worker is able to obtain employment, courts are reluctant to fully

recognize workers’ employment rights when employers violate them.

10

In light of the challenges posed by federal immigration laws and policies,

immigrant rights movements have mobilized for unauthorized workers’ par-

ticipation in the labor market despite their lack of immigration status.

11

By

“Immigrant Rights Movements,” this Article means individuals, groups, and

organizations that work to “improve immigrant communities more broadly,

and for undocumented immigrants specifically.”

12

More precisely, this Article focuses on groups that mobilize in two ways:

(1) directly mobilizing for better work conditions for unauthorized workers

2. Unauthorized Immigrant Population Trends for States, Birth Countries and Regions, PEW RSCH.

CTR. (June 12, 2019), https://perma.cc/VG6Y-STSH.

3. Jeffrey S. Passel & D’Vera Cohn, Mexicans Decline to Less Than Half the U.S. Unauthorized

Immigrant Population for the First Time, PEW RSCH. CTR. (June 12, 2019), https://perma.cc/C9TJ-KHU6.

4. Id.

5. For example, some noncitizens who are here without authorization have applied for and received

relief under the Deferred Action for Childhood Arrivals (DACA) program. See Memorandum from Janet

Napolitano, Sec’y, Dep’t of Homeland Sec., to David V. Aguilar, Acting Comm’r, U.S. Customs and

Border Prot., Alejandro Mayorkas, Dir., U.S. Citizenship and Immigr. Servs., & John Morton, Dir., U.S.

Immigr. and Customs Enf’t, Exercising Prosecutorial Discretion with Respect to Individuals Who Came

to the United States as Children (June 15, 2012), https://perma.cc/P472-MNF5. DACA recipients are

eligible for work authorization. 8 CFR § 274a.12(c)(14) (permitting work authorization for deferred

action recipients who establish “an economic necessity”).

6. See infra Section II.B.1.

7. See infra Section II.B.3.

8. See id.

9. See infra Section II.C.

10. See infra Section II.B.2.

11. See infra Part III.

12. Paul Engler, The US Immigrant Rights Movement (2004-ongoing), INT’L CTR. ON NONVIOLENT

CONFLICT 3–4 (April 2009), https://perma.cc/6ARZ-4NJW.

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