Is a plaintiff’s status as an undocumented immigrant relevant and admissible evidence in this personal injury action?

The leading Maryland case on this issue is RIGOBERTO E. DOMINGOS AYALA, ET AL. v. ROBERT FREDERICK LEE 215 Md. App. 457, 81 A.3d 584 (2013). The Ayala case involved an illegal alien who was making a personal injury claim involving a serious car accident.  The central issue in that case was: Is a plaintiff’s status as an undocumented immigrant relevant and admissible evidence in this personal injury action?

The damages sought in the Ayala case included past and future medical expenses, loss of income, and loss of earning capacity. Ayala and Santacruz are originally from El Salvador. In 2006, they entered the United States through Texas without presenting themselves to federal immigration authorities. They eventually settled in Maryland. Each acquired a Social Security Number and used it to get a permanent resident card, seek employment, and pay taxes. However, each Social Security Number was acquired illegally. Ayala and Santacruz are therefore undocumented immigrants. Appellants moved to exclude evidence of their immigration status at trial. The circuit court ruled that immigration status was relevant and admissible evidence. Because Ayala and Santacruz asked for income-based damages, the circuit court reasoned that they had opened the door to inquiries about their immigration status. In the court’s view, there was a valid question over whether or not a plaintiff could legally earn the income he was claiming in damages. The court also found that the fact that Ayala and Santacruz had misrepresented their immigration status on employment forms was relevant to their credibility. Accordingly, at the August 2012 trial, the jury heard extensive testimony from Ayala and Santacruz on their legal status and how they came to the United States. Defense counsel asked one of appellants’ expert witnesses: “If it is not legal for [appellants] to hold a job in the United States in the future, then your analysis really doesn’t apply, does it?” Counsel later asked appellants’ expert economist: “So you didn’t know when you wrote your report back in November that neither of these gentlemen had entered the country legally, correct?”  The defense planned to a call a witness who would testify that Ayala’s and Santacruz’s Social Security Number cards and permanent resident cards were not legitimate. The circuit court ruled that immigration status was relevant and admissible evidence at a motions hearing prior to the trial. The court provided additional reasoning in a written opinion filed just prior to the August 2012 jury trial. It noted that appellants’ immigration status was not relevant to the duty of care or the injuries alleged and that “[its] potential to unfairly prejudice [appellants] is [too] obvious to require elaboration.” However, it emphasized that appellants’ “claims for lost future wages and future medical expenses” put their immigration status at issue, because there were logical questions regarding how “a plaintiff’s immigration status may create a greater likelihood that his earnings will not be earned in the U.S. labor market” and “as to the likelihood that a plaintiff’s future care will not be provided in the expensive U.S. healthcare system.”

Because the federal government has the “preeminent role . . . with respect to the regulation of aliens within our borders,” Toll v. Moreno, 458 U.S. 1, 10 (1982), questions about immigration status frequently start with an examination of federal law. With the IRCA, Congress declared that “it is unlawful for a person or other entity to hire, or to recruit or refer for a fee, for employment in the United States an alien knowing the alien is an unauthorized alien . . . with respect to such employment.” 8 U.S.C. § 1324a(a)(1) (2013). However, the IRCA and its enforcement policies typically penalize employers rather than employees, and enforcement against employers is also relatively low:

In Design Kitchen & Baths v. Lagos, 388 Md. 718, 721 (2005), the Court of Appeals considered the effect of the IRCA and Hoffman on “the eligibility of an undocumented alien to receive workers’ compensation.” An employee injured his hand while operating a saw at his job and filed a claim for workers’ compensation, which the Maryland Workers’ Compensation Commission granted. Id. at 722. The employer appealed, arguing that the See also Avila-Blum v. Casa de Cambio Delgado, Inc., 236 F.R.D. 190, 192 14 (S.D.N.Y. 2006) (finding that Hoffman is “limited to actions brought by the NLRB to enforce the National Labor Relations Act”) (Citations omitted). 18 employee’s “undocumented alien status” precluded him from receiving workers’ compensation benefits. Id. at 723. In affirming the award, the Court of Appeals found that the purpose of the Maryland Workers’ Compensation Act, state public policy, and the lack  of federal preemption all pointed in favor of awarding workers’ compensation regardless of immigration status. Id. at 729-40.

We likewise conclude that neither the IRCA nor Hoffman mandates denying awards of lost wages or medical expenses to undocumented immigrant employees solely because of their immigration status. In reaching this conclusion, we are guided by the Court of Appeals’ narrow view of the IRCA and Hoffman in Design Kitchen & Bath, 388 Md. at 735-40. We have also considered the decisions reached by courts in other states that have directly addressed the question and determined that neither the IRCA nor Hoffman prevents states from providing damages for lost wages and loss of earning capacity. See, e.g., Continental PET Technologies, Inc. v. Palacias, 604 S.E.2d 627, 631 (Ga. Ct. App. 2004) (Hoffman “does not preempt Georgia law on the question of whether or not an illegal alien may receive Then codified at Md. Code (1991, 1999 Repl. Vol.), Labor & Employment Article, 15 Title 9. 19 workers’ compensation benefits for employment”); Balbuena v. IDR Realty LLC, 6 N.Y.3d 338, 363 (N.Y. 2006) (holding that the IRCA did “not bar maintenance of a claim for lost wages by an undocumented alien”); Correa v. Waymouth Farms, Inc., 664 N.W.2d 324, 329 (Minn. 2003) (concluding that Hoffman does not prevent award of state workers’ compensation benefits); Grocers Supply, Inc. v. Cabello, 390 S.W.3d 707, 719 (Tex. App. 2012) (“We have found no evidence Congress intended IRCA to combat illegal immigration by encroaching into the States’ authority to regulate health and safety matters[.]”); Tyson Foods, Inc. v. Guzman, 116 S.W.3d 233, 244 (Tex. App. 2003) (holding that Hoffman did “not apply to common-law personal injury damages” and that “Texas law clearly allows for the recovery of damages for lost earning capacity, regardless of the claimant’s citizenship or immigration status.”).

Evidence Having determined that federal law does not preclude outright the award of lost wages or medical expenses in a personal injury action, for the guidance of the circuit court on remand we address whether evidence of appellants’ immigration status would be relevant or prejudicial to the damages to which appellants may be entitled. Appellees argue that evidence of immigration status is relevant to both appellants’ claim of lost wages and their credibility.

Lost Wages- Immigration status is relevant to a claim for lost wages for the simple reason that the legal ability to work affects the likelihood of future earnings in the United States. See Rosa 16 v. Partners in Progress, Inc., 868 A.2d 994, 1002 (N.H. 2005); Serrano v. Underground Utilities Corp., 970 A.2d 1054, 1067 (N.J. Super. Ct. App. Div. 2009); Salas v. Hi-Tech Erectors, 230 P.3d 583, 586 (Wash. 2010). Ayala and Santacruz sought lost earnings as part of their damages and thus established the basis for the relevance of their immigration status.

Yet relevant evidence “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.” Md. Rule 5-403. Immigration status is prejudicial in that it “introduces a factor into the case that might encourage the jury to dislike or disapprove of [a party] independent of the merits.” United States v. Amaya-Manzanares, 17 377 F.3d 39, 45 (1st Cir. 2004). See also United States v. Almeida-Perez, 549 F.3d 1162, 1174 (8th Cir. 2008) (“[T]he use of [immigration] evidence is fraught with the danger of prejudice to a defendant by introducing the possibility of invidious discrimination on the basis of alienage.”); Galaviz-Zamora v. Brady Farms, Inc., 230 F.R.D. 499, 502 (W.D. Mich. 2005) (“[D]amage and prejudice which would result . . . if discovery into . . . immigration

However, immigration status is irrelevant on the question of liability. Hagl v. Jacob 16 Stern & Sons, Inc., 396 F. Supp. 779, 784 (E.D. Penn. 1975); Melendres v. Soales, 306 N.W.2d 399, 402 (Mich. Ct. App. 1981).

Accordingly, courts that have balanced the relevance and prejudice inquiries have frequently come down on the side of “prejudicial” because of the low probative value of evidence of immigration status. The risk of deportation of an undocumented immigrant is very small, and the majority of courts that have considered the issue have held that the mere  chance of deportation is not a sufficient basis for the introduction of immigration-related evidence. See, e.g., Hernandez v. M/V Rajaan, 848 F.2d 498, 500 (5th Cir. 1988) (no error in excluding immigration evidence because there was “no proof that [the plaintiff] was about to be deported or would surely be deported”); Hagl v. Jacob Stern & Sons, Inc., 396 F. Supp. 779, 785 (E.D. Penn. 1975) (“[T]here was nothing which would have justified the jury’s reducing damages because plaintiff is an alien who might conceivably face some unspecified immigration action at an unknown time.”); Clemente v. California, 40 Cal. 3d 202, 221 (Cal. 1985); Klapa v. O&Y Liberty Plaza Co., 645 N.Y.S.2d 281, 282 (N.Y. Sup. Ct. 1996) (“The fact that a plaintiff is deportable does not mean that deportation will actually occur. Further, whatever probative value illegal alien status may have is far outweighed by its prejudicial impact.”); Republic Waste Servs., Ltd. v. Martinez, 335 S.W.3d 401, 409 (Tex. App. 2011) (“Without a showing that a plaintiff will likely be deported in his working lifetime, the jury See n.13, supra. 18 22 is invited to engage in conjecture and speculation regarding whether he will be deported, when he will be deported, and, if deported, whether he will return to the United States to work.”).

If the court determines that evidence of a party’s immigration status is not unfairly prejudicial, its relevance typically relates to whether a party is entitled to lost wages at a United States pay rate or at the home country rate. See, e.g., Melendres v. Soales, 306 19 N.W.2d 399, 402 (Mich. Ct. App. 1981). The question of whether a party is entitled to United States earnings or home country earnings is a question of fact, because it necessarily depends on the jury determining the likelihood of whether or not the party will remain in the United States for the duration of the awarded compensation. See Rodriguez v. Kline, 232 Cal. Rptr. 157, 158 (Cal. Ct. App. 1986); Melendres, 306 N.W.2d at 402 (The jury has a “right to know of plaintiff’s illegal status when calculating damages”). In other words, if it is unlikely that a plaintiff will be deported or if he shows a long history of working in the United States, some courts have concluded that an undocumented immigrant may only recover lost  wages at the home country rate. See Wielgus v. Ryobi Technologies, Inc., 875 F. Supp. 2d 854, 862 (N.D. Ill. 2012) (predicting that Illinois law would preclude United States earnings but allow “the recovery of damages for lost future earnings or earning capacity based on what [a plaintiff] could legitimately earn in his country of lawful residence”); Rosa, 868 A.2d at 1000 (An illegal immigrant generally “may not recover lost United States earnings, because such earnings may be realized only if that illegal alien engages in unlawful employment”). At least one court has determined that undocumented immigrants are not entitled to any lost wages, regardless of the pay rate. See Veliz v. Rental Service Corp. USA, Inc., 313 F. Supp. 2d 1317, 1337 (M.D. Fla. 2003) (applying Florida law and analogizing lost wages to backpay). We do not share these views because we believe that a blanket rule prohibiting United States earnings improperly ignores the reality of a plaintiff’s living situation, regardless of his or her legal status. United States pay rate is more appropriate. If there is evidence that the plaintiff is likely to return to his home country, whether by choice or by deportation, a country of origin pay rate is more appropriate.

Immigration status alone does not reflect upon an individual’s character and is thus not admissible for impeachment purposes. See Figeroa v. U.S. I.N.S., 886 F.2d 76, 79 (4th Cir. 1989) (“An individual’s status as an alien, legal or otherwise, however does not entitle the [government] to brand him a liar.”); Galaviz-Zamora, 230 F.R.D. at 502 (finding no connection between immigration status and witness credibility); Mischalski v. Ford Motor Co., 935 F. Supp. 203, 207-08 (E.D.N.Y. 1996) (no support for “the conclusion that the status of being an illegal alien impugns one’s credibility”).

Immigration violations that involve false statements, such as false employment papers, are more likely to be relevant, but are still subject to an intensive inquiry into the likelihood of prejudice, as discussed above. See Serrano, 970 A.2d at 1070 (observing that the likelihood of evidence of “employment related false statements” leading to “other witnesses who could offer negative opinions or reputation testimony about plaintiffs’ truthfulness” that would be admissible seems exceedingly low). Further, the relevance of an immigration-related false statement, standing on its own, is limited if the party against whom it is offered is not charged with an immigration-related crime. See TXI Transp. Co. v. Hughes, 306 S.W.3d 230, 241-42 (Tex. 2010) (The collateral matter of defendant’s immigration status was inadmissible impeachment evidence because it served only to “contradict [the defendant] on facts irrelevant to issues at trial”).

However, we cannot ignore the fact that in this case, appellants clearly opened the door to questions about their immigration status when their answers to interrogatories differed substantively from documents they later submitted as evidence. See Md. Rule 5- 20 802.1(a) (The hearsay rule does not exclude cross-examination about statements that are inconsistent with declarant’s testimony if the statement was “reduced to writing and was signed by the declarant”); Md. Rule 5-613 (examining a witness about a prior written statement). Specifically, Ayala and Santacruz indicated that they were legally permitted to work in the United States and provided copies of federal documents, such as their tax returns, showing Social Security Numbers that were purportedly assigned to them. However, they later submitted copies of applications for asylum that stated that they were neither United States citizens nor legal residents. Thus, if on remand appellants choose to testify, their credibility may be challenged with questions asking them about these apparently inconsistent statements. Appellants may not have known that they could have objected to the interrogatories and not answered them. See Galaviz-Zamora, 230 F.R.D. at 503 (granting plaintiffs’ motion for protective order, prohibiting disclosure of “[a]ny documents or information likely to lead to the discovery of Plaintiffs’ immigration status,” after defendants submitted interrogatories seeking information about immigration status).

Considerations on remand In the event that questions are raised about appellants’ immigration status at a future jury trial on damages, we summarize the limitations on such inquiries. The out-of-state case law suggests a multi-part inquiry into the circumstances of a party’s immigration status. Facts for the jury to weigh include: whether there is an imminent risk of deportation; how long the party has been in the United States; his or her work history in the United States; whether he or she has a family in the United States; what the United States wage rate is; and what the comparable home country wage rate would be, among other considerations. There was some evidence of these questions before the circuit court. A future jury hearing the damages portion of the trial would benefit from a full exposition of these and other relevant facts, with the circuit judge serving as an alert monitor of any questioning or evidence that veers too far on the side of prejudice.

In our opinion the immigration-related questioning of certain witnesses, such as the medical experts and appellants’ expert economist, went too far. While it would be proper to establish that the figures those witnesses relied on were based on United States dollars, any further attempt to elicit their opinion on costs outside of the country would be irrelevant. Appellees would benefit from securing their own expert witness who could testify about the likely costs in appellants’ home country. Further, it may be that appellants’ applications for asylum have made some progress, which would be relevant to the question of whether they would leave the United States  (assuming that if the applications were approved, appellants would stay). Even if the applications have not been approved, the fact that they exist and that appellants are actively seeking asylum is certainly germane to the question of whether they plan to leave the United States in the future.

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