Representing Undocumented Hispanics - An Injury Attorney Primer

West Chester, Mason, and Cincinnati Ohio

My grandfather was an immigrant tailor from Italy. This country was built by immigrants. The most discussed immigrants of today are of Latino or Hispanic origin. As a personal injury lawyer I have had occasion to represent as an accidente abogodos several people of Mexican descent. Their status was "legal alien" or documented immigrant.

However I often wondered what pitfalls I would face if I represented an undocumented immigrant be they Hispanic, Latino, Russian, African or otherwise. Through my membership in the Circle of Legal Trust I was able to learn of a colleague, and now a friend, who could shed some light on this for me. Alexander Limontes, an Indiana bodily injury lawyer of Hispanic descent, had written an article that now serves as my primer on representing undocumented immigrants. He graciously allowed me to publish his article for the first time on my Ohio personal injury blog.

The number of Hispanics in the tri-state area of Ohio, Kentucky and Indiana is a large and thriving population. Documented or undocumented they are deserving of first rate representation without stigma . Especially those that are undocumented that have been hurt here in car accidents or work related injuries. What Alexander teaches about keeping from evidence this prejudicial effect of their undocumented status applies equally to Cincinnati, Ohio and other jurisdictions as it does in Alexander's home in Indianapolis.

The Latino Population Is Here To Stay and Thrive

Drive down the West Washington Corridor in Indianapolis, Indiana and you will notice dozens of Latino owned businesses. The same can be said for certain parts of small towns like Frankfort, Indiana and Elkhart, Indiana. There is no doubt that the Latino population is growing not only in Indiana but in the United States in general. The US Census Bureau projects that the Latino Population in the United States will more than double in the next 50 years from 53.3 million people to 128.8 million people. For the past several years I have dedicated my practice to serving the Latino and Hispanic Population in Indianapolis and throughout Indiana. Admittedly, as a Spanish Speaking Hispanic I am uniquely positioned to assist this population but given the projected growth rate and sheer numbers there is a good chance that many of us practicing law will have some interaction with the Hispanic Population during our course of practice.

A Common Myth About Hispanic Immigrants

Many people believe that a large majority of the Hispanic and Latino Population in the United States is undocumented. The fact is that of the approximate 40.4 million Latino Immigrants living in the United States about 11.1 million are undocumented or about 25% of the total population. Many people assume that most of the population is undocumented but the research suggests otherwise and in fact the number of “illegal” immigrants in the United States has steadily dropped since 2007 much of which can be attributed to our struggling economy and increased border awareness.
However, there still remain feelings of resentment and animosity towards the Ethnic Group. The National Hispanic Media Coalition with the assistance of the Kellogg Foundation and UCLA professors recently performed an exhaustive study on the Impact of Media Stereotypes on Opinions and Attitudes towards Latinos and the results were staggering. The study revealed at over 30% of non-Hispanic respondents believed that over 50% of the Latino Population in the United States are undocumented or “illegal”. Unfortunately, we will see many of these people sitting on our jury panel. Therefore, what can we do as attorneys to dispel some of these stereotypes and provide our Hispanic clients with the most effective representation?

Keeping your Client’s Immigration Status Away from the Jury

While the percentage of undocumented Latinos is not as high as many people thought, some of us may be faced with representing an Undocumented Latino at some point in our career and anticipating how to protect them from unfair prejudice is of the utmost importance. In addition, there is a lot of talk about immigration reform and many professionals in the immigration law community agree that reform is coming but the reality is that we must practice law today and until that day comes we will be faced with representing undocumented persons.

Motion in Limine

A great tool for a trial lawyer in this respect is the Motion in Limine. The Indiana Practice Series §3:19 is a great place to begin. It provides trial attorneys with a basic motion in limine which states that the evidence of a Plaintiff’s immigration Status should be excluded because pursuant to Trial Rules 401-403 it is not relevant to ant material issue in the case and would create an unfair prejudice.

Indiana Trial Rule 401 defines relevant evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable”. Indiana Trial Rule 401. This begs the question, is a plaintiff’s immigration status a “fact of consequence”? Most Courts would agree that in a standard negligence case the Plaintiff’s immigration status has no bearing on any material issue and therefore is not a fact of consequence.

Indiana Trial Rule 403 goes on to state in part that even relevant evidence can be excluded if its probative value is outweighed by certain dangers of unfair prejudice, confusing the issues or misleading the jury. A plaintiff’s immigration status is of no consequence in a negligence case and as such carries little (if any) probative value. However, allowing a jury to hear evidence about a party’s immigration status will most definitely carry with it the danger of unfair prejudice. In addition, it is an attempt to mislead jurors away from the real dispute or confuse the issues. Ultimately, their immigration status is not on trial and any attempt to admit evidence regarding their immigration status is an attempt to draw the jury’s attention away from the real question of negligence or damages.

Get a Protective Order

Although the discovery process is liberal with some limitations, a protective order may bar opposing counsel from obtaining your client’s immigration status during discovery. Some Federal District Court judges have issued orders precluding counsel from inquiring into a party’s immigration status during discovery. In Hernandez v. City Wide Insulation of Madison, Inc. (E.D. Wis. Nov. 30, 2006) a District Court Judge Issued a Protective Order barring defendants from obtaining discovery concerning plaintiffs' immigration statuses. Furthermore, in VIZ-ZAMORA v. BRADY FARMS, 230 F.R.D. 499 (U.S. District Court for the W.D. of Michigan 2005) the District Court Judge issued an order stating that immigration status is not subject to discovery.

However, there are some Federal District opinions where the Court permitted discovery of a Plaintiff’s immigration status. In Zuniga v. Morris Material Handling, Inc., (N.D. Ill. Feb. 14, 2011) the Court said, “[The] plaintiff’s ability to be employed legally in the United States may affect his claim for lost wages. If his claim is based on the premise that Zuniga would continue to be employed in the United States but for the injury, his ability to be employed legally in this country is arguably relevant to that claim and to his future earnings capacity claim,” and is discoverable. Interestingly, in that case the Court never addressed the issue of whether the plaintiff’s immigration status is admissible.

Federal Cases

Indiana Courts have not spoken to the issue of the admissibility of a party’s immigration status at trial but many Federal courts have addressed more generally the relationship between a party’s immigration status and the Federal Rules of Evidence (specifically FRE 401-403).
Toliver v. Hulick, 470 F.3d 1204 (U.S. Ct. App. 7th Cir. 2006). In 2006, the Court of Appeals for the 7th Circuit in Chicago, IL decided the matter of Toliver v. Hulick. In Toliver, Antoine Toliver was convicted of murder after a Jury Trial in Illinois and sentenced to 46 years in prison. The conviction was affirmed by the Illinois Court of Appeals and declined by the Illinois Supreme Court.

Toliver petitioned for a writ of habeas corpus to the District Court essentially stating that his constitutional right to confront witnesses was violated. He alleged that he was entitled to cross examine the eye witness about his immigration status and the Court erred by precluding him from doing so. The alleged illegal immigrant was an eye witness to the murder and defense counsel attempted to admit their immigration status but the State of Illinois moved in limine to prohibit defense counsel from asking the eye witness about his immigration status. Defense counsel argued that he was an illegal immigrant whose immigration status was relevant because, as an illegal, he had a motive to cooperate with the police to influence them to not report him to what was then the Immigration and Naturalization Service, where he could face possible removal from the country.

The Illinois Trial Court judge refused to allow Toliver to question the witness about his immigration status. The Court of Appeals ultimately decided that the State Court’s failure to allow questions regarding immigration status was not an unreasonable application of clearly established federal law and agreed with the State Court’s analysis.

On the other hand, the 1st Circuit Court of Appeals ruled in United States v. Diaz, 494 F.3d 221 (U.S. Ct. App. 1st Cir. 2007), that the Criminal Defendant’s immigration status was admissible at trial. In Diaz, the defendant was convicted of possession and distribution of illegal drugs. During his interrogation, the Defendant waived his Miranda Rights and admitted to, among other things, entering the United States illegally fifteen years ago. The trial court allowed the testimony and the Defendant moved for a mistrial which was denied. The Court of Appeals recognized the potential for prejudice with allowing this evidence but ultimately decided that given his confession and the State’s “sturdy” case the trial court did not abuse its discretion by admitting the evidence.

Wage Loss Claim

A case involving lost wages is a situation where you may encounter some heavy resistance when trying to limine out immigration status or get an order of protection from a judge. The United States Supreme Court addressed the issue of an undocumented immigrant’s ability to collect back pay in Hoffman Plastic Compounds, Inc. v. National Labor Relations Board, 122 S.Ct. 1275 (U.S. Supreme Court 2002). In Hoffman, the Petitioner hired Jose Castro under the impression that he was authorized to work in the United States but eventually laid him off for supporting a union-organized campaign at the petitioner’s manufacturing plant.

The National Labor Relations Board (NLRB) found that the layoff was a violation of the National Labor Relations Act (NLRA) and awarded back pay as well as other relief. Castro testified during an administrative hearing that he was never legally permitted to work in the United States. The matter eventually made its way to the Supreme Court where Chief Justice Rehnquist delivered the opinion of the Court stating that Federal immigration policy, as expressed by Congress, foreclosed the NLRB from awarding back pay to an undocumented alien who has never been legally authorized to work in the United States. However, it is important to note that Shepherdizing the Hoffman case reveals over 2400 citing references many of which involved a court declining to extend the decision or not following on state law grounds.

Indirect Effort to Inquire into Immigration Status Not Permissible

In some cases, the Defendant to an action seeks to indirectly inquire into a Plaintiff’s immigration status. In the case of Andrade v. Walgreens-Optioncare, Inc., the judge precluded Walgreens from presenting evidence relating to Plaintiff’s (Andrade) immigration status under FRE 403. In response to that ruling, Walgreens attempted to introduce evidence that Plaintiff lied about his social security number. The judge found that “permitting Walgreens to inquire directly about whether Andrade lied about his social security number exposes Andrade to the same risk of prejudice as asking about his immigration status. This is especially true here, given that Andrade does not speak English, and will be using an interpreter if he takes the stand at trial. The combination of Andrade's inability to speak English, and the suggestion that he does not have a social security number, exposes Andrade to the risk that the jury might leap to a conclusion about his immigration status, leading to the same risk of unfair prejudice as if Walgreens directly inquired about Andrade's immigration status. I will therefore preclude Walgreens from directly inquiring on cross-examination about Andrade's social security number.” Andrade v. Walgreens-Optioncare, Inc., 784 F. Supp. 2d 533, 537 (E.D. Pa. 2011).

In another case of note, an employee filed a case against his employer for unlawful employment practices. After the suit was filed, Defendant Company required all employees to complete an employment application form for the first time which reveals, inter alia, whether an employee is a citizen. Plaintiff filed for a protective order, which was granted by the Court. The Court noted that Defendant had never before required employees to fill out such a form previously. The Court found that the main purpose behind the alleged new found desire to abide by the U.S. Labor and immigration laws was to effect a not so subtle intimidation of the plaintiffs and all the potential class members. “Such actions are meant to, and if unchecked most certainly will, chill the exercise of the employees…rights.” E.E.O.C. v. City of Joliet, 239 F.R.D. 490, 492 (N.D. Ill. 2006). Revealing immigration status through that indirect means was therefore prohibited by the Court.

A Lack of Driver’s License Inadmissible

It is important to note that most if not all undocumented immigrants in Indiana do not have a valid driver’s license because proof of a social security number must be submitted along with other documentation in order to obtain one. Therefore, this issue should also be addressed in your motion in limine.

Indiana Courts addressed the question of whether lack of a license is admissible in a negligence action many years ago but the precedent still holds true today. The Indiana Supreme Court found in the case of Opple v. Ray that if person, adult, or minor, unlicensed to operate an automobile, is entrusted with one and operates it with that degree of care and skill that is required of licensed operator, negligence cannot be predicated upon mere fact of minority or lack of operator's license. “We are unable to see how minority, or lack of an operator's license, could be the proximate cause of an injury. It is true that lack of skill or knowledge concerning the operation of an automobile may cause an injury; and some evidence was introduced tending to establish that Helen Opple was not familiar with the operation of an automobile.

But if a person, adult or minor, unlicensed to operate an automobile, is entrusted with one and operates it with that degree of care and skill that is required of a licensed operator, negligence cannot be predicated upon the mere fact of minority or lack of an operator's license.” Opple v. Ray, 208 Ind. 450, 455, 195 N.E. 81, 83 (1935). “Negligence must be determined from the facts surrounding the accident…If a person, whether an adult or a minor, whether licensed or unlicensed to operate an automobile, does in fact operate such automobile with that degree of care and skill that is required of a licensed operator, negligence cannot be predicated upon the mere fact of minority or lack of such license.” Shaw v. Hart, 136 Ind. App. 567, 569-70, 202 N.E.2d 587, 588 (1964).

Closing Remarks

Overall, Courts have found that introduction of the immigration status of a party is either irrelevant or substantially more prejudicial than probative and thus is inadmissible in court. This has been found true of direct references to immigration status as well as indirect methods used by the Defense to try to open the door to immigration status. In most cases, the Plaintiff’s immigration status is both irrelevant and substantially more prejudicial than probative if used to impeach credibility. If the Defendant counsel tries to open the door to immigration status by inquiring into the lack of a US driver’s license, it can be seen that the main purpose behind the question was the improper introduction of immigration status. However, one should always be cognizant of potential pitfalls when making a claim for lost wages because it may open the door to evidence of the claimant’s immigration status.

By Alexander Limontes Licenciado Accidente for Indiana personal injury

For more information about Alexander you may go to these two bodily injury lawyer web sites:

www.billhurst.com

www.indianapolisabogado.com

It you are a documented or undocumented immigrant and need help with an injury claim in Cincinnati, Columbus, Dayton or throughout Ohio you can contact Attorney Anthony Castelli for a Free consultation at 513-621-2345