Fair Treatment Under the Law


Indiana’s highest court handed down a unanimous ruling earlier this month protecting the rights of injured unauthorized immigrants to seek recovery of lost wages and decreased earning capacity and importantly, making their undocumented status inadmissible at trial in most cases. I represented the Indiana Chapter of AILA and appeared and briefed the case as amicus. (Noe Escamilla v. Shiel Sexton Company, Inc., Indiana Supreme Court No. 54S01-1610-CT-546, decided May 4, 2017.)

The plaintiff, Noe Escamilla, is an undocumented immigrant who was brought to the United States by his parents while he was a teenager.  Escamilla had lived and worked in the United States ever since and eventually married a U.S. citizen (USC) and had three USC children.  In 2010, while employed by subcontractor Masonry by Mohler, he slipped on snow and ice as he attempted to lift a heavy stone. Escamilla suffered a hernia and severely injured his back, permanently disabling him and prohibiting him from working again as a masonry laborer.  There is no evidence that Masonry by Mohler checked Escamilla’s immigration status prior to his injury.

Escamilla sued Shiel Sexton, the general contractor on the project, seeking recovery of lost wages and decreased earnings capacity.  Escamilla retained two expert witnesses, an economist and a vocational expert, to testify as to his damages.  Prior to trial, Shiel Sexton submitted a motion to the trial court arguing that (1) Escamilla should not be permitted to recover his decreased earnings capacity because of his undocumented status; (2) his immigration status should be admissible because he could be deported at any time; and (3) Escamilla’s expert witness testimony should be excluded due to failure to consider his immigration status.  The trial court agreed with Shiel Sexton on the last two issues, and a divided Court of Appeals upheld its decision.

On appeal however, the Indiana Supreme Court determined that undocumented immigrants can pursue claims for decreased earnings capacity.  The court relied on the Open Courts clause of the Indiana Constitution, which provides in part that “All courts shall be open; and every person, for injury done to him in his person, property, or reputation, shall have remedy by due course of law.”  The court concluded that the “every person” language, which has roots in the Magna Carta, includes unauthorized immigrants and protects their access to Indiana courts.

The court then established the evidentiary framework for determining when the undocumented status of a plaintiff claiming decreased earnings capacity is admissible.  The court held that unless a person seeking to admit evidence of immigration status can demonstrate that the plaintiff is more likely than not to be deported, evidence of immigration status is inadmissible.  The court reasoned that in most cases, the probative value of immigration status will be substantially outweighed by the risk of confusion of the issues and unfair prejudice.  Permitting evidence of immigration status and deportation risk would result in a collateral mini-trial on immigration, requiring in-depth expert testimony by both parties, the court observed.  In light of the ever-shifting and complex nature of federal immigration policy, such discussion would likely bring more confusion than clarity.

The court noted that the chance of deportation of a person such as Escamilla has historically been low  and that nearly all of those who have been deported (more than 97% in 2015) were either apprehended at or near the border or had been convicted of a crime.  In addition, because immigration status is subject to change, a jury would be required to evaluate complex eligibility requirements and consider whether a given plaintiff would be accepted for a change of status.  Finally, the court observed that “because illegal immigration is, for many a sensitive issue—personally, ethically, and politically,” it carries risk of unfair prejudice.

The decision can be viewed as a favorable result for an eclectic mix of advocates.  For immigrants’ rights advocates and advocates of the disadvantaged generally, the case protects meaningful access to courts by one of the most vulnerable of populations.  For workplace safety proponents, the decision encourages safe practices by holding employers accountable for workplace injuries regardless of the immigration status of their employees.  Finally, for supporters of strong immigration enforcement, the decision ensures that employers will not be encouraged to hire undocumented workers in order to avoid liability for workplace accidents.

I encourage all AILA chapters to consider whether there are opportunities like this in their states, where using immigration law and courtroom expertise could have a positive impact beyond the individual case itself. Let’s find those opportunities together, and fight these cases together.

Written by Tom Ruge, AILA Indiana Chapter

by Guest Blogger