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Can an undocumented immigrant sue for personal injury?

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Posted on August 31, 2021

Thousands of Undocumented Immigrant Claims Go Un-filed

There are an estimated 12 to 40 million undocumented immigrants living in the United States depending on what source you use. While it is difficult to ascertain the exact amount, unfortunately, it is easy to know that many undocumented immigrants feel helpless when they have sustained any kind of work accident, car accident, or other type of personal injury because of their immigration status. They suffer in silence because the at-fault party frequently escapes responsibility and, as a result, thousands of claims go un-filed against the responsible insurance company.


Always Talk to an Attorney

Undocumented individuals do have rights when injured by the negligent actions of others. As such, undocumented individuals should always talk to one of our experienced personal injury attorneys about the injury they suffered and whether it’s actionable against the insurance company.; whether that injury comes at the hands of another’s negligence or if they are injured on the job. Rule 1.6 of the Rules of Professional Conduct that governs attorneys states that an attorney cannot reveal information you revealed to them, including your immigration status. So prospective clients should always feel comfortable discussing their potential personal injury case with an attorney as he/she could never disclose to anyone a client’s immigration status.

However, as most things in life, it’s not as easy as simply saying there won’t be any problems when pursuing a claim against an insurance company if you are undocumented. There may be some issues that can arise or be a bit more difficult due to your legal status. Accordingly, you should always discuss your potential injury claim with an experienced injury lawyer who understands how immigration status can affect a case and be aware of some of the issues that can affect your personal injury claim and lawsuit.


Settlement vs. Lawsuit

An undocumented immigrant’s unlawful immigration status oftentimes does not become an issue when filing a claim with insurance companies for personal injury because many cases settle without litigation. However, if a reasonable settlement is not reached or if a claim is denied, then the undocumented immigrant will be forced to file a lawsuit against the at-fault party. Filing a lawsuit triggers some things that can impact a personal injury case value, including discovery issues, admissibility issues, driver’s license issues, and workplace issues. Additionally, lawsuits can take a long time, and if an undocumented immigrant is in removal proceedings it can greatly impact the ability to win the lawsuit. Our We Win Injury Law attorneys have worked hand in hand with immigration attorneys to ensure an immigrants removal proceedings do not impact the lawsuit.


Issues During Discovery

In every lawsuit there is a “discovery” period in which many of the potential immigration issues arise. Discovery is the formal process of exchanging information between the parties about the witnesses and evidence that will be presented at trial. It includes depositions, requests for documents, a series of questions about your background and past education, medical history, and work history. During depositions, questions concerning a personal injury victim’s immigration status can be brought up, and they are difficult to exclude during a deposition. That doesn’t mean the answer is admissible at trial, but the questions do come up and they trigger a unique analysis. This is especially true in personal injury cases where lost wages or loss of income are being pursued. Once the at-fault party discovers that the personal injury victim is undocumented, it can affect a case. Not only will your attorney need to object to certain questions to preserve the information from being used in trial, but your attorney should also discuss strategies for how to handle deposition questions regarding immigration status.


Admissibility Issues

Even if the immigrant’s status as undocumented is ascertained by the defendant during the discovery phase in a lawsuit, there are many instances where evidence of the victim’s immigration status will be excluded at trial because of the rules of evidence. Rule 403 states that if the evidence’s value is outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, it is excluded. So in almost all situations, courts have ruled that informing a jury of an undocumented immigrant’s immigration status to be prejudicial, and informing the jury is forbidden.

However, an immigrant’s immigration status as undocumented has been found to be relevant in a few jurisdictions based because of how it affects lost wages, future earning capacity, and similar issues. Some jurisdictions will limit future wages to what the undocumented person can earn in their country of origin, or at least present the jury with that question. This can severely limit the amount of recovery in certain situations where earning capacity in the home country for certain professions is different than the United States. To make matters more confusing, other jurisdictions, like California, specifically prohibit any use of undocumented status for any reason. Therefore, if earning capacity or similar issues are present because of the injuries you have sustained, you should consult with a competent personal injury attorney who understands how immigrant status can affect earning capacity to determine what works best in your specific jurisdiction.


Undocumented Immigrant and Driver’s License

One issue that comes up for undocumented immigrants and their personal injury cases occurs in car accident cases. Specifically, when the undocumented immigrant is also the driver of a vehicle in the accident and whether they have a valid driver’s license and the legal right to drive on the roads. For example, in Utah it is very difficult for undocumented immigrants to obtain a valid driver’s license and Utah law requires you to have a valid driver’s license to be able to drive on the road. In this example, the at-fault party will attempt to shift the blame to the undocumented driver because they didn’t have a legal right to drive on the roadway. You should consult with your personal injury attorney on how to show that this is not a superseding factor to the at-fault party’s negligence.


Workplace Injuries

Another area where the status of an immigrant can greatly affect the outcome is workplace injuries. Undocumented immigrants are typically the individuals who work some of the most dangerous jobs in the United States, including, manufacturing, construction, demolition, agriculture and many more that puts undocumented workers at risk of injury in their workplace. Many employers in these industries know that their workers are hesitant to file a claim and will cut corners on safety, which results in many undocumented immigrants operating unsafe equipment, dealing with unsafe and toxic chemicals, and similar workplace environments. These employers then create a difficult HR process for dealing with worker’s compensation claims and some even operate without worker’s compensation insurance.

In fact, many of these employers hire undocumented workers to save money and the undocumented worker is left without safe equipment and insurance. They are often left with injuries that the long-term effects could have been mitigated or even avoided with proper access to healthcare. In these situations having a personal injury attorney early in the process can greatly affect the undocumented worker’s ability to recover for their injuries.

On the opposite end of the spectrum, employers are sometimes more at risk for damages because the unsafe conditions can subject the employer to punitive damages from state agencies, especially if they created the unsafe condition that injured an undocumented worker. Again, the laws for workers provide that an immigrant, whether legal or not, should be able to work in a safe environment and they are protected to pursue personal injury lawsuits through filing of worker’s compensation claims.

Remember, when it comes to workplace injuries your immigration status does not affect your right to pursue damages after being hurt through someone else’s negligence. In almost all cases, the courts favor protecting every individual injured in any type of workplace accident, regardless of their undocumented immigration status. If you were hurt at work and it was not your fault, then you should not hesitate to talk to a personal injury attorney about what you can do next in pursuit of fair compensation and reasonable medical care.


Final Take Away: 

As you can see, personal injury claims and lawsuits can help support undocumented immigrants to be able to receive the treatment to recover from an injury. Although it requires some nuance and expertise, undocumented immigrants can file claims and lawsuits to recover what they may be legally entitled to. However, using the wrong attorney can spell disaster and subject the undocumented immigrant to potential issues beyond their case. That is why we recommend visiting with a competent We Win Injury Law attorney to determine the best course of action for pursuing your personal injury case. Remember, the consultations are always free and hablamos Espanol!