Defending against Suits Brought by Illegal Aliens

I. Introduction PIERRE LEFAUX is a citizen of Canada who illegally (1) the United States. (2) Pierre used a forged birth certificate and false social security card in the name of Peter Jones to obtain employment with XYZ Painting, a Texas company in the business of residential house painting. While on a job in Dallas, Pierre was injured in a fire when combustible materials ignited from a spark. Pierre sustained severe bums and may be unable to work for the remainder of his life. Pierre brought suit against XYZ Painting for negligence and claimed lost past and future earning capacity damages, among other damages. This article uses Texas case law, as well as persuasive arguments from other jurisdictions, to provide insight into the following questions defense counsel should address when faced with a suit brought by an illegal alien like Pierre: * Is Pierre entitled to recover damages for lost future earning capacity in U.S. wages? * Are Pierre's lost earnings claims preempted by any federal or state laws? * Are Pierre's claims barred by state law or the Unlawful Acts Doctrine? * May evidence of Pierre's immigration status be submitted to the jury? and * Should Pierre's expert account for his immigration status when formulating opinions? II. Loss of Future Earning Capacity An essential question that arises in any tort suit brought by an illegal alien (3) is whether compensatory damages for lost wages should be measured based on the plaintiff's ability to work in the United States or in his home country. While arguments and analysis regarding claim preclusion and/or preemption are less likely to apply to aliens who are employed by an employer with full knowledge of their illegal status or aliens who obtain employment from an unwitting employer without tendering any fraudulent documents, (4) a strong case may be made in many jurisdictions that workers like Pierre are not entitled to compensation based on U.S. wages. Texas has been cited as a state in which case law provides greater protection for illegal aliens seeking compensation for lost wages based on U.S. wages. (5) Even in Texas, however, the law is unsettled on the issue of whether an illegal alien who was employed under fraudulent circumstances may recover damages for the loss of future earning capacity based on U.S. wages. Four Texas courts have reviewed the issue, but their worth is minimal since the factual scenarios provide alternative protections for these immigrants and none relied upon any authority or performed any analysis to establish such a right. In Hernandez v. M/V Rajaan, a longshoreman was injured on the job. (6) The longshoreman was an illegal alien who had resided in the U.S. continuously since 1970. (7) The M/V Rajaan court held an illegal alien may recover lost wages in U.S. earnings unless the defendant can establish the illegal alien was about to be or would surely be deported. (8) This holding was predicated on the fact that the longshoreman could remain in the U.S. legally because the Immigration Reform and Control Act provided amnesty/citizenship status to those aliens who entered the United States before January 1, 1982, and ... resided continuously in the United States in an unlawful status since such date.... (9) Further, M/V Rajaan was decided before the U.S. Supreme Court handed down Hoffman Plastic, and its holding has not been challenged post-Hoffman. In Wal-Mart Stores, Inc. v. Cordova, the El Paso Court of Appeals, in a footnote without discussion or citation to authority, stated Texas law does not require citizenship or the possession of immigration work authorization permits as a prerequisite to recovering damages for loss of earning capacity. (10) The Cordova court, however, did not address whether Texas courts should allow a plaintiff's illegal status into evidence when determining lost earning capacity. (11) More importantly, the Cordova court did not discuss whether the lost earning capacity damages should be measured at United States wages or the wages available in the plaintiff's country of origin. …

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