Immigration, particularly the immigration of undocumented aliens (“illegal immigration”), is something of a hot topic right now. I actually do handle a good amount of immigration work, but the primary focus of my practice is personal injury representation. In this blog, I examine the rights of immigrants injured by the negligence or wrongful conduct of another.

Immigrants and both documented and undocumented have the same right to pursue injury claims as legal citizens

Pursuant to the 14th Amendment to the United States Constitution, no State may deny “..any person within its jurisdiction the equal protection of the laws.” This means that legal immigrants and even people unlawfully present in the United States are entitled to pursue personal injury cases.

It may seem odd to allow people who have disrespected the legal system to use that same system to get money when they are injured. There have been arguments about who the 14th Amendment was really intended to protect, but the current reading extends 14th Amendment protections to anyone in the United States.

Even if the 14th Amendment didn’t exist, there are still sound reasons to allow any injured person to pursue a personal injury claim. For example, one large and important purpose of our injury law system it to punish and deter negligent or otherwise wrongful conduct. That legitimate purpose of any legal system, deterring conduct likely to injure others, exists whether or not the person who is injured has violated other laws.

We don’t for example, deny people the right to pursue a lawsuit if they are behind in their rent, have experimented with illegal drugs, or occasionally drive above the speed limit. Of course, illegal immigration is arguably a more serious offense than any of those, it is, in fact, a crime under current U.S. Law, but the reader might consider balancing the deterrence of injury causing behavior as a valid outcome.

Tricky Issue: Lost Wages

In many personal injury cases, the claimant will seek to recover for pain and suffering as well as for lost wages.  While the immigrant is free to recover for pain and suffering in just the same way as anyone else in the United States, claims for lost wages can be tricky. Particularly where the immigrant has no authorization to work in the United States, lost wages recovery may be limited to wages that would have or could have been earned in the immigrant’s home country.

Threats and Fear of Being Caught

When the immigrant is out of status or is undocumented, they may have a significant fear of arrest and/or deportation by the immigration authorities. The immigrant may fear being reported to the authorities in retaliation for pursuing a claim, or arrest “at the courthouse,” or any number of other possible scenarios. Here are a few points that may be of comfort for the injured immigrant:

  1. Your own lawyer is ethically prohibited from reporting you to the authorities
  2. A lawyer working for the other side in a case is ethically prohibited from threatening to report you to prevent you from asserting a claim
  3. If the other side is not already aware of your immigration status, your lawyer can take steps to prevent the other side of the case from ever learning about it
  4. Your immigration status is irrelevant to your case, it does not prove or disprove the other side’s fault or your damages. Because of this, most courts will grant motions to exclude discussion of your immigration status
  5. You don’t have to have a social security number to pursue an injury claim
  6. Over 90 percent of injury cases are settled without the parties ever having to enter a courthouse
  7. If you request it, your lawyer can take steps to prevent the other side in a case from learning where you live