150
Opinion of the Court
dating" IRCA, the Board's position, recognizing employer misconduct but discounting the misconduct of illegal alien employees, subverts it.
Indeed, awarding backpay in a case like this not only trivializes the immigration laws, it also condones and encourages future violations. The Board admits that had the INS detained Castro, or had Castro obeyed the law and departed to Mexico, Castro would have lost his right to backpay. See Brief for Respondent 7-8 (citing A. P. R. A. Fuel Oil Buyers Group, Inc., 320 N. L. R. B., at 416). Cf. INS v. National Center for Immigrants' Rights, Inc., 502 U. S., at 196, n. 11 ("[U]ndocumented aliens taken into custody are not entitled to work") (construing 8 CFR § 103.6(a) (1991)). Castro thus qualifies for the Board's award only by remaining inside the United States illegally. See, e. g., A. P. R. A. Fuel Buyers Group, 134 F. 3d, at 62, n. 4 (Jacobs, J., concurring in part and dissenting in part) ("Considering that NLRB proceedings can span a whole decade, this is no small inducement to prolong illegal presence in the country"). Similarly, Castro cannot mitigate damages, a duty our cases require, see Sure-rather slender reed, e. g., Bank One Chicago, N. A. v. Midwest Bank & Trust Co., 516 U. S. 264, 279 (1996) (Scalia, J., concurring in part and concurring in judgment). Even assuming that a Committee Report can shed light on what Congress intended in IRCA, the Report cited by Justice Breyer says nothing about the Board's authority to award backpay to illegal aliens. The Board in fact initially read the Report as stating Congress' view that such awards are foreclosed. Memorandum GC 88-9 from Office of General Counsel, NLRB, Reinstatement and Backpay Remedies for Discriminatees Who Are "Undocumented Aliens," 1988 WL 236182, *3 (Sept. 1, 1988) ("[T]he relevant committee report points out [that] Sure-Tan was the existing law and that decision itself limited the remedial powers of the NLRB. Clearly, Congress did not intend to overrule Sure-Tan"). Other courts have observed that the Report "merely endorses the first holding of Sure-Tan that undocumented aliens are employees within the meaning of the NLRA." Del Rey Tortilleria, Inc., 976 F. 2d, at 1121 (citation omitted). Our first holding in Sure-Tan is not at issue here and does not bear at all on the scope of Board remedies with respect to undocumented workers.
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