Scorched Border Litigation

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Briana Beltran, Lecturer, Farmworker Legal Assistance Clinic, Cornell Law School;

Beth Lyon, Clinical Professor of Law, Cornell Law School;

Nan Schivone, Legal Director, Justice in Motion.

Each year, employers bring hundreds of thousands of temporary foreign workers into the United States only to return them to their communities of origin when their visas end. During their short months working in the United States—whether in agricultural fields, hotels, traveling carnivals, or private homes—many of these workers experience violations of their rights: wages are stolen, injuries are ignored, and those who complain are punished on the spot or sent home.

Temporary foreign workers who choose to file a lawsuit to vindicate their rights typically do so once they are no longer in the United States, often litigating from rural communities in other countries. During litigation, the employers and the employers’ lawyers regularly use the fact that the workers are no longer present in the United States to gain a procedural or substantive advantage in litigation. This strategy, which we call “scorched border” tactics, is a standard litigation practice and is enabled by the very design of temporary foreign work programs, themselves rooted in the United States’ long history of low-wage foreign labor exploitation. Scorched border litigation drives up costs for a deeply under-resourced public interest bar and can chill lawyers’ case selection, shutting down access to justice for some of the most vulnerable of the working poor. However, to date, there exists no study documenting or analyzing this undeniable phenomenon.

This Article documents and critiques scorched border litigation tactics, drawing on a broad range of sources including a survey of practitioners who represent temporary foreign worker (“TFW”) plaintiffs, a collection of case histories, and a review of court rulings. We find that federal court litigation has already adapted to handle the complexities presented by these TFW cases, such as modifying the manner and location of a TFW plaintiff’s deposition. These types of adaptations are not new to experienced lawyers representing TFW plaintiffs and are regularly permitted by courts. However, these adaptations are often so far out of the litigation norm that defense lawyers seek to gain an advantage by creating costly and unnecessary disputes in a case.

The forced adaptation of the civil justice system to the COVID-19 pandemic, however, may open new opportunities for countering scorched border tactics. With courts now experienced in remote proceedings, what was the subject of ridicule or pushback by defense lawyers in TFW cases is suddenly the norm. A review of new pandemic-era federal court rules offers concrete prescriptions for federal district courts on how to proceed when an individual litigant does not reside in the United States. In so doing, we aim to ensure that the return of TFW plaintiffs to their communities of origin after their employment in the United States is over—as is required by the very programs that allow them to work here—can no longer be used by employers to block their access to justice.

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