According to a July 2009 study released by the Pew Hispanic Center, Mexico is the leading country for all immigration to the U.S., Mexican immigrants account one-third of all foreign born residents in the U.S., and 80-85% of all Mexicans living in the U.S. for less than a decade are undocumented. Many of these immigrants settle in the U.S. permanently, but large numbers cross both ways across the Mexico/U.S. border, often staying for only a few months, a pattern so common it has a name – circular migration.
For example, the same study reported that during the period 2008-2009, 636,000 Mexicans migrated to the U.S. and 433,000 Mexicans returned to Mexico from the U.S. – two-thirds returned to Mexico. This is consistent with other studies finding that the average undocumented Mexican works in the U.S. for 3-6 years before returning to Mexico. Why do you care? If an illegal immigrant is injured or dies on your project, there is an 80-85% chance that he is illegal, and, if you are found liable, you will likely pay a lost wages claim based on future work in the U.S., not Mexico, even though the data shows he likely would have returned to Mexico well before retirement.
At first glance, this may not seem like much, but in a recent Houston court of appeals decision, the plaintiff’s lost wages claim was $1.4 million, as opposed to the $28,000 he would have earned while employed in his country of origin, El Salvador. The relevant facts were as follows: Oscar Alfredo Gomez, the plaintiff (from El Salvador), used forged immigration documents to obtain work with Republic Waste Services of Texas and ultimately died in a work related injury at the same company. Republic sought to introduce evidence of Gomez’s illegal status to challenge the $1.4 million lost wages claim. Republic’s argument was simple – Gomez would have left the U.S. voluntarily or involuntarily before retirement; therefore, his lost wages claim should be based on work in El Salvador – $28,000.
Republic even introduced evidence that federal immigration authorities raided Republic’s facilities two weeks after Gomez’s death and argued that Gomez most certainly would have been removed and/or deported along with the other illegal workers. While the Houston court agreed that Gomez’s immigration status was relevant to the issue of lost wages, fearful of the jury’s response to Gomez’s illegal status, it excluded the evidence from trial.
In the end, Gomez’s lost wages claim went unchallenged and was upheld – his family was awarded $1.4 million, exactly 50 times what he would have earned in El Salvador. This ruling is consistent with a prior Texas Supreme Court opinion (and other state courts) that excluded evidence of illegal immigration based on the fear of what a jury will do on finding out that a plaintiff is illegal.
What do you think? Should a jury be allowed to know the plaintiff’s immigration status? Is the fear of prejudice enough to support a windfall award to any plaintiff? I would love to hear your thoughts.