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Syllabus
to reenter this country following their voluntary departure when their employers unlawfully reported them to the Immigration and Naturalization Service in retaliation for union activity. Among other things, the Court there found that the Board's authority with respect to the selection of remedies was limited by federal immigration policy as expressed in the Immigration and Nationality Act (INA), and held that, in order to avoid a potential conflict with the INA with respect to backpay, the employees must be deemed "unavailable" for work (and the accrual of backpay therefore tolled) during any period when they were not "lawfully entitled to be present and employed in the United States." 467 U. S., at 903. This case is controlled by the Southern Steamship line of cases. ABF Freight System, Inc. v. NLRB, 510 U. S. 317, 325, distinguished. Pp. 142-146.
(b) As a matter of plain language, Sure-Tan's express limitation of backpay to documented alien workers forecloses the backpay award to Castro, who was never lawfully entitled to be present or employed in the United States. But the Court need not resolve whether, read in context, Sure-Tan's limitation applies only to aliens who left the United States and thus cannot claim backpay without lawful reentry. The question presented here is better analyzed through a wider lens, focusing on a legal landscape now significantly changed. The Southern S. S. Co. line of cases established that where the Board's chosen remedy trenches upon a federal statute or policy outside the Board's competence to administer, the Board's remedy may have to yield. Whether or not this was the situation at the time of Sure-Tan, it is precisely the situation today. Two years after Sure-Tan, Congress enacted IRCA, a comprehensive scheme that made combating the employment of illegal aliens in the United States central to the policy of immigration law. INS v. National Center for Immigrants' Rights, Inc., 502 U. S. 183, 194, and n. 8. Among other things, IRCA established an extensive "employment verification system," 8 U. S. C. § 1324a(a)(1), designed to deny employment to aliens who (a) are not lawfully present in the United States, or (b) are not lawfully authorized to work in the United States, § 1324a(h)(3). It also makes it a crime for an unauthorized alien to subvert the employer verification system by tendering fraudulent documents, § 1324c(a), an offense that Castro committed when obtaining employment with petitioner. Thus, allowing the Board to award backpay to illegal aliens would unduly trench upon explicit statutory prohibitions critical to federal immigration policy. It would encourage the successful evasion of apprehension by immigration authorities, condone prior violations of the immigration laws, and encourage future violations.
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