Deportation is a concern that often arises in cases involving injuries to undocumented immigrants on construction sites. The injured worker’s status as an undocumented immigrant becomes relevant when considering the amount of damages the court should award the worker. Specifically, if the worker is deported, the worker’s damages are likely significantly less when the income potential is analyzed against the immigrant worker’s country of origin. The Washington Supreme Court recently addressed this issue in Salas v. Hi-Tech Erectors, 168 Wn.2d 664, 230 P.3d 583 (2010).
While working at a construction site for Hi-Tech Erectors, undocumented Mexican immigrant Alex Salas was severely injured when he slipped on a ladder and fell more than 20 feet to the ground. Salas went on to sue Hi-Tech and sought to exclude evidence of his immigration status. At trial, however, Salas also sought any future income lost due to his injury, and because his status would determine whether Salas’ future income would be in U.S. or Mexican currency, the court admitted the evidence.
Ultimately, the jury found Hi-Tech Erectors negligent, but that such conduct was not necessarily the proximate cause of Salas’ injury. Salas appealed, but the Court of Appeals affirmed, concluding that while evidence of immigration status should generally be inadmissible because it is highly prejudicial, Salas’ immigration status was discovered late and the court was not provided with sufficient relevant authority on the issue.
The Washington Supreme Court, granting Salas’ petition for review, tackled the question of whether the court abused its discretion by admitting evidence of Salas’ immigration status when Salas sought damages for lost future income. The Court found no evidence of pending deportation proceedings which would call into question which currency to use. In fact, Salas had been living in the U.S. since 1989, without assistance since 1994, and had both purchased a home and raised children in Washington State. His immigration status posed the only real risk of deportation. And according to Justice Fairhurst, writing the majority opinion, this doesn’t even guarantee deportation, as “immigration status alone is not a reliable indicator of whether someone will be deported.” When an undocumented immigrant is apprehended, he or she is still subject to removal proceedings, but deportation isn’t always the end result.
Although Salas’ immigration status only marginally increased the likelihood he’d be deported, the Court found this reason enough to make his status relevant to the issue of lost wages. The Court then analyzed whether the low probative value of Salas’ immigration status was substantially outweighed by the risk of unfair prejudice.
The Supreme Court reversed and remanded the ruling, holding that the trial court abused its discretion by admitting evidence of Salas’ immigration status:
“We recognize that immigration is a politically sensitive issue. Issues involving immigration can inspire passionate responses that carry a significant danger of interfering with the fact finder’s duty to engage in reasoned deliberation. In light of the low probative value of the immigration status with regard to lost future earnings, the risk of unfair prejudice brought about by the admission of a plaintiff’s immigration status is too great. Consequently, we are convinced that the probative value of a plaintiff’s undocumented status, by itself, is substantially outweighed by the danger of unfair prejudice.”
Id. at 673-74.
So what is the bottom line? In all likelihood, an illegal immigrant’s status will not be admissible in a worker injury case due to the perceived prejudice against undocumented workers. Some courts have even indicated an inherent and unequivocal bias in certain segments of society against illegal immigrants. People v. Martin, 2004 WL 859187 at *6 (Cal.App. April 22, 2004) (unpublished). It seems that the courts are suggesting that jurors will make their decision based on the plaintiff’s immigration status rather than the facts adduced at trial. Not exactly a ringing endorsement for our jury system!