James H. Whalen, Esq.
Lipe Lyons Murphy Nahrstadt & Pontikis, Ltd.
The 2012 Presidential campaign and Boston marathon bombings have pushed the national immigration discussion to the fore. By some estimates there are more than 11 million illegal immigrants in the United States today. Many of these individuals are a part of the work force, and some might use identities other than their own to obtain employment.
For many Americans, this may be an important but somewhat distant discussion, its impact invisible in their day-to-day lives. Attorneys who practice personal injury litigation may not be readily aware of the affect of immigration issues upon their cases. However, as long as there are illegal immigrants living and working in the United States, they will continue to find their way into our civil courts as plaintiffs. In the appropriate circumstances, the immigration status and the identity of a plaintiff are crucial issues that should be investigated by counsel for all parties to a lawsuit.
One of the issues raised by a plaintiff’s residency status is the damages available to illegal immigrants in personal injury tort suits. The case Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002) the United States Supreme Court held that an illegal alien cannot recover back pay because such a practice “would unduly trench upon explicit statutory prohibitions critical to federal immigration policy … [and] would … condone prior violations of the immigration laws, and encourage future violations.” Id. at 151. In Martinez v. Freeman, 2008 U.S. Dist. LEXIS 112290 at *7 (N.D.Ill. Feb. 22, 2008), a court sitting in the Northern District of Illinois barred an undocumented plaintiff’s claim for loss of future U.S. earnings. Similarly, in Hernandez-Cortez v. Hernandez, 2003 WL 22519678, *7 (D. Kan. 2003) the court found that plaintiff’s “status as an illegal alien precludes his recovery for lost income based on projected earnings in the United States.” A Florida District Court case, Veliz v. Rental Service Corporation USA, Inc., 313 F.Supp.2d 1317 (M.D.Fla.2003) reached the same conclusion.
As a plaintiff’s attorney with a prospective client and personal injury lawsuit, one of the first issues to be addressed when interviewing a potential plaintiff is his or her immigration status. Depending upon the law applicable to the claims, a plaintiff that is not authorized to work in the United States could be faced with arguments attacking claims for back pay and lost income. Plaintiff’s counsel must explain these issues to prospective or current clients, and should consider the potential fees available when evaluating whether to take on a case. Similarly, in the appropriate case, defense counsel should make tailored inquiries of the plaintiff to determine his or her residency status to evaluate defenses to damages. Defense counsel should also make their client aware of the need to consult an employment attorney to address any fallout that may result from the employment of a plaintiff not authorized to work in the United States. These damages arguments are just one of the issues that may be affected by a plaintiff’s immigration status.