Monday, May 10, 2021

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Lori A. Nessel

Excerpted from: Lori A. Nessel, Disposable Workers: Applying a Human Rights Framework to Analyze Duties Owed to Seriously Injured or Ill Migrants, 19 Indiana Journal of Global Legal Studies 61 (Winter, 2012) (172 footnotes omitted)

 

At the time of his tragic accident, Quelino Ojeda Jimenez was a twenty-year-old Mexican migrant laborer who had been engaged in construction work in the United States for four years. While working on a roof in Chicago, Quelino fell backwards and plummeted over twenty feet to the ground below. Comatose for three days, he awoke at Advocate Christ Hospital, nearly quadriplegic and reliant on a ventilator in order to breathe. Although the hospital treated him for four months, it could not seek reimbursement for the ongoing medical care because of Quelino's undocumented immigration status. Shortly before Christmas, without notifying the Mexican Consulate or obtaining Quelino's consent, the hospital ushered him onto a private plane and flew him to a hospital in Mexico that lacked the equipment required to sustain his life. After languishing for more than a year in a rural hospital in Mexico that was ill equipped to handle his needs, twenty-one-year-old Quelino Ojeda Jimenez passed away on January 1, 2012.

Charlie Deeyu is a twenty-eight-year-old Burmese migrant worker who found himself chained to a hospital bed in Thailand after a severe work injury on a construction site left him immobilized and in need of treatment. According to the Thai immigration authorities, Deeyu's immigration status warranted that he be shackled to his hospital bed as a flight risk, notwithstanding that the work injury had left him immobilized.

Maria Sanchez was being prepped for surgery at the University of Texas Medical Branch's John Sealy Hospital to remove a banana-sized tumor that was causing loss of movement in her limbs when she was suddenly discharged and told to go to Mexico.

Throughout the world, migrant workers perform the most hazardous work for the lowest wages. However, when migrant workers or their family members are injured or become seriously ill and require ongoing medical treatment, they find themselves at the intersection of two unforgiving regimes: immigration and health care. In the United States, hospitals that receive federal Medicare funding are required to provide emergency treatment regardless of immigration status. However, once an undocumented patient is stabilized, the federal government ceases to pay for ongoing necessary medical care in hospitals or in rehabilitation facilities.

Congress's decision to deny reimbursement to hospitals and nursing homes for treatment of undocumented patients has left a dangerous void between the moral and human rights-based duty to care for the sick and the economic pressure to avoid costly ongoing treatment for patients that are not able to afford it or to qualify for governmental reimbursement programs. In an effort to save costs, and within the broader context of the privatization of immigration regulation and increasing immigration enforcement by local actors, many public and private hospitals take it on themselves to enforce the nation's immigration laws by deporting desperately ill immigrants directly from their hospital beds. In this new frontier of privatized immigration enforcement, hospitals act unilaterally or in concert with private transport companies to deport seriously ill or catastrophically injured migrants.

When viewed from an immigration perspective, the undocumented immigrant in need of medical care is often characterized as a lawbreaker, and the hospital's private deportation is seen as returning the migrant to the position he would have been in had he not broken the law and entered the United States without permission. Viewed from a healthcare perspective, the prevailing focus is on the unjust cost to the hospital and taxpayer, with the migrant's claim to medical treatment seemingly detached from the gritty reality that he was injured or became ill while working in the host country. The immigrant is viewed as an outsider who belongs in his home country and, instead, unreasonably demands costly treatment abroad.

While the practice of medical repatriation, or the extrajudicial deportation of seriously ill immigrants directly by hospitals, had been largely unknown and undertheorized until recently, in the past few years, a number of scholars have focused upon the legal and ethical issues raised by this practice. However, medical repatriation has most often been analyzed in isolation as an example of an anomalous unlawful or unethical action undertaken by hospitals, rather than as a predictable, if horrifying, extension of a legal regime that treats migrant labor as disposable.

In this Article, I examine the relationship between the private deportation of migrant workers by hospitals with broader themes of globalization, undocumented labor migration, and increasing privatization of immigration enforcement functions. I also examine the practice of medical repatriation as an example of the broader need for a human rights-based approach to migration and particularly to the treatment of undocumented workers. I seek to explore the interconnectedness between migration patterns that are based on the demand in industrialized countries for workers to engage in low-paid, hazardous work and the way in which the migrant workforce is perceived as not being entitled to basic human rights protections. By utilizing a human rights-based framework, I critique the practice of medical repatriations. In contrasting the humanitarian aspects of the United States' approach to protecting victims of human trafficking with the punitive approach taken towards migrant laborers, I attempt to deconstruct the widely held belief, as expressed in laws and policies, that the United States or other countries that rely on migrant workers owe nothing in return for the labor that is provided.

 


 

Professor of Law and Director, Center for Social Justice, Seton Hall University School of Law.

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