There are many challenges to living as an undocumented person in the United States. One of them is that your immigrant status may have a negative impact on your ability to successfully litigate a personal injury case. In particular, if the defendant learns about your status, here are three ways he or she may try to use it against you.
Try to Get the Case Thrown Out
The first thing the defendant may attempt to do is claim you don't have the right to sue in court because that right is only reserved for US citizens and legal residents. This isn't true; though it isn't completely false either.
The 14th Amendment of the Constitution provides everyone equal protection under the law, regardless of their immigration status, so you can sue in federal court for civil rights violations and other issues with no problem. Unfortunately, the individual states aren't always as straightforward about an undocumented person's rights in this area.
Some states have explicitly said immigration status has no bearing on a person's right to sue. For instance, in three different cases--Barahona v. Trustees of Columbia University, Coque v. Wildflower Estates Developers, and Hernandez v. 151 Sullivan Tenant Corp—courts in New York have ruled people's illegal immigration status doesn't sever their ability to sue for damages, though it may affect the amount of money they're awarded.
Other states are more ambiguous about this right or leave the matter up to judges to decide on a case-by-case basis. The good news is judges typically defer to state and federal law. So more likely than not, your immigration status won't be an issue. However, there's always the off chance you may get a judge who feels it does bar you from continuing the case. In this situation, you may have to appeal to a higher court to have the issue resolved in your favor.
Try to Get You Deported
Another, more serious thing that might occur is the defendant may attempt to have you deported to put a stop to the proceedings. It is against the law to blackmail people, and the majority of defense attorneys are ethical enough that they wouldn't allow their clients to use this as a bargaining chip when negotiating settling the case. However, that won't stop a determined defendant from making an anonymous call to ICE agents.
What the defendant may not realize, though, is your attorney can continue litigating your case even if you are not in the country. There are a number of accommodations the courts can make to account for your absence, especially with the advances in technology available today. For instance, you can testify via video conferencing with the court's permission.
It's important you are upfront with your attorney about your immigration status, though, so he or she can make the appropriate preparations just in case the defendant tries to pull this maneuver.
Try to Get Your Damage Award Reduced
At the very least, the defendant may try to convince the court to reduce your damage award using your immigration status as an excuse. He or she may argue your illegal status precludes you from collecting lost wages since undocumented persons aren't legally allowed to work in the US or that the amount should be based on how much longer you'll stay in the country.
Judges have rejected the argument that undocumented workers shouldn't collect damages for wages because of their status. However, they have been known to instruct juries to take the length of time an undocumented person may remain in the country into consideration when awarding money. Additionally, if you used fake documentation to get your job, the court may consider that fraud, and you may not be able to collect any money at all.
It's important to contact a personal injury lawyer with experience in immigration issues to help you with your case. The attorney can develop a litigation strategy that protects your rights and help you obtain the compensation you're due. For more information or assistance, call a lawyer, such as those at Hornthal Riley Ellis & Maland LLP.