Trial Magazine

At a time of great uncertainty in our country, one thing remains constant: Immigration is one of the country’s most polarizing issues. Strong beliefs and attitudes about immigration force lawyers who represent undocumented immigrants to meaningfully address a host of questions that may surface during litigation.

In the United States, people are usually classified into one of four categories: citizens, permanent residents, temporary visa holders, or undocumented immigrants.¹ Some people claim that undocumented immigrants have no rights of any kind simply because they are “illegal.” But the law disagrees: Our Constitution guarantees certain rights to all “persons” or “individuals,” while specifically providing that other rights are reserved only for “citizens.”² Federal and state courts agree that undocumented immigrants have the right to due process and trial by jury, as well as against unlawful search and seizure and self-incrimination.³

Undocumented immigrants have the right to file suit, but some practical problems will arise early in your representation. Planning for those problems is particularly important, given an increasing number of publications that aim to help defense lawyers ­undermine cases brought by undocumented immigrants.⁴

Above all, accurately determining your client’s immigration status early on is crucial. But remember that undocumented immigrants may be reluctant to disclose their status. Many have lived, worked, and paid taxes in the United States for decades and fear jeopardizing the life they worked to build—a fear justified by the current political climate. While the risk of deportation is the most severe, filing a lawsuit may expose undocumented immigrants to additional risks, such as loss of employment, loss of medical care benefits, or even stressed personal relationships. Family members who are not parties to the suit, for example, may find their own immigration status subject to discovery. 

The Language Barrier

Just as you would with any other client, explain all the claims available, discuss the pros and cons of asserting each claim in the context of the client’s specific case, and update him or her regularly throughout the litigation. Representing an undocumented immigrant, however, may present some additional issues. For example, if you do not have bilingual staff, you may need to hire translators for written text and interpreters for verbal communication.

Relying on a client’s family member to help with these tasks is rarely a wise choice. Family members may not be familiar with legalese or able to convey critical nuances that a professional interpreter with experience in similar cases could. The family member may also want to help explain your client’s response by translating it in a way that is not verbatim. And unless you speak the language, you won’t know when the translation is inaccurate or incomplete. If you handle a fair number of cases that require translations, consider hiring bilingual staff who can help efficiently manage your interpretation needs.

Also be prepared to document and defend the accuracy of your client’s discovery responses. While you may have prepared them based on information from your client, how will your client verify those discovery responses in English? For example, clients who are unable to read English cannot read the actual responses you prepared or verify the truth of the information in the “official” discovery responses. Clients are often questioned about their discovery responses during a deposition, so make sure your client has seen his or her official answers well beforehand. 

Figure out what you need to do to satisfy the court and defense counsel that your client’s responses are sufficiently verified. Do you need a bilingual staff member or certified interpreter to read the answers and sign the verification? Do you need to translate the official responses into your client’s native language for review? There is very little law on this issue, so what is “required” in any given case will depend on what the judge will order and what opposing counsel expects.⁵

Finding and using translators or interpreters may increase the amount of time needed to complete discovery, so plan ahead to avoid missing deadlines or seeing your trial date get pushed back. You may also need to retain special counsel to address immigration-related legal issues, such as assessing the risks of deportation in your client’s specific circumstances. Those costs can add up quickly, so if your retainer agreement allows your firm to be reimbursed for litigation expenses, discuss these extra charges with your client early on to avoid any unpleasant surprises. 

Discoverability Versus Admissibility 

The defense typically asks about your client’s immigration status in its first set of written discovery demands. If you have not already done so, you must analyze how to handle the issue throughout the case. 

Look at your complaint. What specific claims are your client asserting? How could your client’s immigration status arguably affect those claims? What does the law in your jurisdiction say about the discoverability of immigration status in a civil case? For example, is the client making a claim for impaired earning capacity? If so, then prepare to handle questions about immigration status. Or is the client making a claim only for noneconomic damages, such as loss of consortium? If so, then you may not have to face this issue. 

Thoroughly examine the facts of your client’s status. Is there a basis for making a wage-related claim? Does the client need future medical care, or is all the necessary medical treatment complete? When courts have admitted evidence of citizenship status, it has almost universally been deemed relevant to an economic damages claim. So think through your client’s claims, and do not place citizenship status at issue when it otherwise would not be discoverable or admissible. Finally, if you want to lodge objections to interrogatories asking about citizenship status or any related questions, do so immediately so you do not waive future arguments.

Whether a ­plaintiff’s immigration status is discoverable versus whether it is admissible at trial are two separate issues. Much of the case law discusses Fed. R. of Evid. 403, and courts often presume the information is relevant and use a balancing test to evaluate whether the risk of unfair prejudice outweighs the probative value of the information, given the particular circumstances of the case.⁶

In light of the media spotlight on immigration issues today, courts will be hard-pressed to ignore the tremendous likelihood of unfair prejudice to undocumented plaintiffs. And given this national attention, think about whether you want to frame the issue during voir dire—including the substantial likelihood that some jurors will identify your client’s immigration status and talk about it during deliberations, even if it is kept out of the “official” evidence at trial.

While some courts presume relevance, others refuse to even allow discovery of a plaintiff’s immigration status. When the employer of a group of Chinese immigrant workers alleging violations of the Fair Labor Standards Act requested the identification of the workers’ immigration status, a federal district court considered existing case law and held that the information was not discoverable. The court even cautioned the parties that entering into a confidentiality agreement that would restrict the disclosure of the information would not alleviate “the danger of intimidation” and “the danger of destroying the cause of action”—and that such an agreement would still “inhibit plaintiffs in pursuing their rights.”⁷ Other courts addressing the same issue have likewise determined that a plaintiff’s immigration status is not discoverable.⁸

But some tactics to uncover your client’s immigration status occur outside the realm of discovery. For example, the largely overlooked Texas Civil Practice and Remedies §30.014 requires an initial pleading to include the last three digits of a party’s Social Security number. Enacted for judgment identification, some now use the requirement to learn a party’s immigration status. This information—or lack thereof—could “out” an undocumented immigrant in the first pleading filed.

Your client’s immigration status may also become discoverable or admissible later in the litigation. For example, it may become relevant for impeachment purposes if your client provides inconsistent information. Courts have found that plaintiffs open the door to admission of their immigration status if their answers to interrogatories differ substantively from other evidence they’ve offered. 

In Ayala v. Lee, for example, the plaintiffs claimed in interrogatory answers that they were legally permitted to work in the United States and produced copies of federal documents, such as tax returns, showing Social Security numbers that were purportedly assigned to them.⁹ But the plaintiffs later produced copies of applications for asylum in which they admitted they were neither U.S. citizens nor legal residents permitted to work in the country. The court noted that, on remand, the plaintiffs’ credibility could be challenged by their inconsistent “statements” in those discovery documents if they chose to testify.¹⁰

Finally, the U.S. Supreme Court weighed in on a narrow issue in the context of undocumented immigrant status in Hoffman Plastic Compounds, Inc. v. National Labor Relations Board.The case involved a dispute over back pay under the National Labor Relations Act (NLRA). The Court held that an undocumented immigrant who admittedly used fraudulent documents to get a job in the United States was not entitled to back pay under the NLRA. “[A]llowing the Board to award back pay to illegal aliens,” the Court ruled, “would unduly trench upon explicit statutory prohibitions critical to federal immigration policy, as expressed in IRCA [Immigration Reform and Control Act of 1986].”¹¹ Importantly, Hoffman “is a narrow decision that does not touch on state common law.”¹²

Calculating Damages

American Jurisprudence states about damages: “Although no general rule can be formulated that would properly control the admission of evidence to prove a person’s future earning capacity, any evidence is admissible that would fairly indicate the person’s present earning capacity and the probability of its increase or decrease in the future.”¹³

Defense lawyers also quote heavily from Hoffman to persuade other courts that undocumented immigrants are entirely prohibited from recovering medical expenses or lost wages. And some courts agree.¹⁴ But the vast majority of courts reviewing economic damages awards under state tort law recognize that Hoffman is a narrow decision that applies only to back pay recoverable under the NLRA.¹⁵ As the Ayala court pointed out, “[N]either the IRCA nor Hoffman mandates denying awards of lost wages or medical expenses to undocumented immigrant employees solely because of their immigration status.”¹⁶

However, prepare to face the argument that recovery of wages and medical expenses should be evaluated based on whether the plaintiff will remain in the United States. The length of time a plaintiff may be able to continue earning wages and receiving medical care in the United States—as well as the likelihood of the plaintiff’s potential deportation—are questions of fact for the jury.¹⁷

Some courts allow the jury to consider the economic effect on those costs if the plaintiff is later deported.¹⁸ Others have limited the recovery to the amount that the plaintiff would be able to earn or recover in his or her home country.¹⁹ Although one Washington trial court held that a plaintiff’s immigration status was probative of the currency in which the plaintiff’s loss of future income would be calculated, the Washington Supreme Court reversed, concluding that the risk of an undocumented immigrant being deported based solely on immigration status is “exceptionally low,” which is confirmed by statistics from the U.S. Department of Homeland Security.²⁰ More important, the court emphasized that “even if an undocumented immigrant is apprehended, removal from the United States is not a foregone conclusion”²¹ because the immigration judge overseeing removal proceedings could still decline to deport the plaintiff. The court ultimately held that evidence of a plaintiff’s immigration status—although minimally relevant under the circumstances—was outweighed by its prejudicial effect.

Although the Washington Supreme Court concluded that the risk of a person being deported simply due to undocumented status was low in 2010, today the fate of undocumented immigrants in this country has never been more uncertain. With the current administration’s aggressive stance, there is simply no way to guarantee that filing a civil lawsuit will not result in any adverse consequences to your client.²²

Until now, it has been essentially unheard of for an undocumented immigrant to appear for a civil deposition or trial, only to find a U.S. Immigration and Customs Enforcement officer waiting. But today that risk doesn’t seem so far-fetched. Promises to build a wall and the implementation of travel bans are just the beginning of the immigration “reform” to come. Now is the time to take special care of these clients, who desperately need guidance along their journey to justice.

April A. Strahan is an attorney at The Ammons Law Firm in Houston. She can be reached at april@ammonslaw.com.

Notes

1. Amy K. Myers, What Non-Immigration Lawyers Should Know About Immigration Law, 66 Ala. Law. 437, 437 (2005).
2. U.S. Const. amend. XIV, §1 (“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”).
3. See, e.g., Mathews v. Diaz, 426 U.S. 67, 77 (1976) (“There are literally millions of aliens within the jurisdiction of the United States. The Fifth Amendment, as well as the Fourteenth Amendment, protects every one of these persons from deprivation of life, liberty, or property without due process of law.”); Escamilla v. Shiel Sexton Co., Inc., 73 N.E.3d 663, 666–67 (Ind. 2017) (citing constitutional guarantees in several cases).
4. See, e.g., J.J. Knauff, A Defense Primer for Suits by Illegal Aliens, 61 Baylor L. Rev. 542 (2009); Frederick T. Lachat Jr. & James J. Amato, Claims by Illegal Immigrants (Sept. 2009), www.margolisedelstein.com/files/lachat_-_claims_by_illegal_immigrants.pdf; Troy D. Hoyt, Defeating the Wage Loss Claims of Undocumented Aliens by Way of the Supreme Court’s Hoffman Plastic Decision (Dec. 2007), www.hklaw.com/publications/defeating-the-wage-loss-claims-of-undocumented-aliens-by-way-of-the-supreme-courts-hoffman-plastic-decision-01-02-2008/.
5. See, e.g., Brill v. Queens Lumber Co., Inc., 2012 WL 441287, at *5 (E.D.N.Y. Feb. 10, 2012) (awarding sanctions when the attorney failed to make sure the interrogatory answers he was serving on behalf of his client had been translated and were understood and approved by the client: “As an officer of the court, it is incumbent upon counsel to ensure that his witness understands what he is being asked to swear to and sign.”).
6. See, e.g., Fed. R. Evid. 403; Escamilla, 73 N.E.3d at 669–70 (discussing the approach of various courts to this issue under Rule 403); TXI Transp. Co. v. Hughes, 306 S.W.3d 230, 245 (Tex. 2010) (holding that the trial court erred in admitting evidence impugning the character of the defendant based on his immigration status).
7. Zeng Liu v. Donna Karan Int’l, Inc., 207 F. Supp. 2d 191, 193 (S.D.N.Y. 2002).
8. See, e.g., Uroza v. Salt Lake Cnty., 2014 WL 670236, at *3 (D. Utah Feb. 20, 2014) (discussing other cases holding this information to be undiscoverable).
9. 81 A.3d 584, 599 (Md. Ct. Spec. App. 2013).
10. The scope of this article does not cover the various issues that arise when your client is asked to discuss their immigration status under oath. This issue is a significant one that must be meaningfully evaluated within the specific facts of your case. Consulting an immigration or criminal lawyer is advisable, particularly if your client has a pending immigration or criminal case.
11. Hoffman Plastic Compounds, Inc. v. Nat’l Labor Relations Bd., 535 U.S. 137, 151 (2002).
12. Hugh Alexander Fuller, Comment, Immigration, Compensation and Preemption: The Proper Measure of Lost Future Earning Capacity Damages After Hoffman Plastic Compounds, Inc. v. NLRB, 58 Baylor L. Rev. 985, 1002 (2006).
13. 22 Am. Jur. 2d Damages §754 (emphasis added) (2017).
14. See, e.g., Veliz v. Rental Serv. Corp. USA, Inc., 313 F. Supp. 2d 1317, 1336 (M.D. Fla. 2003) (“Following Hoffman, this Court finds that it cannot condone an award of lost wages here. In addition to trenching upon the immigration policy of the United States and condoning prior violations of immigration laws, awarding lost wages would be tantamount to violating the IRCA.”).
15. Kalyta v. Versa Prod., Inc., 2011 WL 996168, at *3–7 (D.N.J. Mar. 17, 2011) (discussing various cases that have considered Hoffman in similar contexts).
16. Ayala, 81 A.3d at 596.
17. Maliqi v. 17 E. 89th St. Tenants, Inc., 880 N.Y.S.2d 917, 923–24 (N.Y. Sup. Ct. 2009). 
18. Escamilla, 73 N.E.3d at 675–76 (providing an evidentiary framework for determining when unauthorized immigration status is admissible).
19. Cruz v. Bridgestone/Firestone N. Am. Tire, LLC, 2008 WL 5598439, at *6–7 (D.N.M. Aug. 29, 2008) (excluding economists’ proposed expert testimony under Daubert and Rule 403 because he had not “made any attempt to acknowledge the Mexican citizenship of the [p]laintiffs or the legal barriers to their earning the average American wages”).
20. Salas v. Hi-Tech Erectors, 230 P.3d 583, 585 (Wash. 2010).
21. Id.
22. Cf. Kriston Capps, In California, Landlords Threaten Immigrant Tenants With Deportations, CityLab (Apr. 5, 2017), www.citylab.com/equity/2017/04/landlords-are-threatening-immigrant-tenants-with-ice-deportations/521370/; Betsy Woodruff, Legal Immigrants Fear Getting Arrested in Court by ICE, The Daily Beast (Mar. 30, 2017), www.thedailybeast.com/legal-immigrants-fear-getting-arrested-in-court-by-ice; Tom Dart, Fearing Deportation, Undocumented Immigrants Wary of Reporting Crimes, The Guardian (Mar. 23, 2017), www.theguardian.com/us-news/2017/mar/23/undocumented-immigrants-wary-report-crimes-deportation.