Undocumented immigrants are generally able to find work in the United States regardless of their immigration status, and the work they do makes a positive contribution to the local and national economy. Thus, those immigrants, undocumented or otherwise, are entitled to compensation when they are injured in a tort claim.
That was the argument Tim Devereux brought before the Indiana Supreme Court Tuesday when he argued on behalf of Noe Escamilla, a Mexican-born immigrant who was undocumented when he was injured doing his work as a subcontractor mason for Shiel Sexton, a general contractor. Escamilla’s injury prohibits him from lifting more than 20 pounds, so he filed a personal injury suit seeking $29,000 in medical expenses and between $578,194 and $947,421 for loss of future wages.
However, both the Montgomery Superior Court and a divided Indiana Court of Appeals ruled against Escamilla on the basis of his immigration status, with the Court of Appeals finding that although evidence of his immigration status in his case was prejudicial, its prejudice did not outweigh its probative value.
But Devereux made the opposite argument before the Supreme Court, saying that introducing evidence to the jury that he was undocumented at the time of the injury was so prejudicial that it completely outweighed its probative value and would prevent the jury from properly deciding the case.
Justice Mark Massa asked Devereux why he seemed to have so little faith in jurors and assumed that they could not put Escamilla’s immigration status in the proper context. The attorney said that immigration is one of the hottest political issues in the United States today, so jurors would likely be unable to separate politics from the facts of the case.
But John Mervilde, attorney for Shiel Sexton, argued that Escamilla’s status as an undocumented immigrant at the time of the injury is relevant because it affects the value of his requested future earnings, which were argued for in terms of American dollars. At trial, Shiel Sexton had argued that because Escamilla was not an American citizen at the time of the accident, he was only entitled to future earnings based on the value of the Mexican peso.
Further, if Escamilla’s counsel is permitted to introduce evidence of what his future earnings might be in U.S. dollars, then Shiel Sexton should be allowed to rebut that evidence with its own, including evidence of Escamilla’s immigration status, Mervilde said. The Montgomery Superior Court barred expert opinions of what Escamilla’s future earnings might have been in the U.S., and the Court of Appeals affirmed that decision.
Justice Robert Rucker raised the possibility that Escamilla might be deported back to Mexico, which would prevent him from collecting the future earnings he is requesting in the United States. If that possibility exists, then Rucker asked Devereux why his client’s immigration status was not relevant in the case.
But the possibility of Escamilla being deported is less than 3 percent, Devereux said, which means that it is not very likely that he would actually be removed from the country. Further, Devereux told the court Escamilla has recently attained documented status in the U.S. and could legally work in the country if he files a federal work permit, a form he has not yet completed because he has been largely unable to work since his injury, the attorney said.
Regardless, possible deportation does not make the Mexican man’s immigration status relevant to his claim for tort recovery because a recovery amount can be determined without knowledge of where a person has lawful residence, his attorney said.
Addressing a similar issue, Mervilde told the high court that the case didn’t necessarily focus on the issue of the imminent threat of deportation, but instead on Escamilla’s ability to lawfully earn wages in the U.S. Any recovery Escamilla is awarded should be based upon lawful earnings, Mervilde said, and because he was unlawfully employed at the time of the accident and has been unlawfully employed at every job he has held since, he cannot lawfully recover U.S. wages.
Additionally, Mervilde said anything less than permanent residence opens up the evidentiary issue of immigration status. Although Escamilla now has more documentation to allow him to live in the United States, he is still not a permanent resident, so his immigration status is relevant because there is still a reasonable risk that he will not obtain permanent residence.
Alex Limontes, amicus counsel with the Indiana Trial Lawyers Association who spoke on behalf of Escamilla, told the justices that their decision should focus on tort law, not immigration law, and that the purpose of a tort claim is to provide recovery to a party, such as Escamilla, who is injured by a tortfeasor, meaning Shiel Sexton.