Defending against suits brought by illegal aliens.

• Author: Knauff, Jr., Jerry Joe

1. Introduction

   PIERRE LEFAUX is a citizen of Canada who illegally (1) entered 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?

2. 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. (12)

   In Tyson Foods, Inc. v. Guzman, the Tyler Court of Appeals relied on the dicta found in the footnote in Cordova for the proposition that Texas law does not require citizenship or the possession of immigration work authorization permits as a prerequisite to recovering damages for lost earning capacity. (13) Similarly, the Eastern District of Texas, in Contreras v. KV Trucking, Inc., relied upon Guzman for the same proposition. (14) The facts of Cordova and Guzman are inapposite to the facts of Pierre's suit because neither case involved an illegal alien who used fraudulent documents to obtain employment. Rather, the facts in those cases merely showed each plaintiff was an illegal alien who had not committed any additional criminal offenses, (15) and counsel in these cases focused on precluding lost wages claims altogether, rather than addressing the manner in which claims should be measured. Moreover, the issue of federal preemption of lost wages claims by illegal aliens was not properly before either court because the defendants, respectively, failed to plead the affirmative defense of preemption. (16) Thus, any discussion of the application of Hoffman Plastic and/or federal preemption by these courts is obiter dictum and not controlling. (17)

   Although it is improbable the statements in Cordova, Guzman, and Contreras have any precedential value, it would be difficult to dispute that an illegal alien has standing to bring suit in the United States because an illegal alien is entitled to the benefits of the Equal Protection Clause of the Fourteenth Amendment, which provides no state shall deny to any person the benefit of jurisdiction in the equal protection of the laws. (18) Just because an illegal alien has the right to bring suit, however, does not mean certain of his claims are not barred or limited by application of various laws. (19) At least one commentator has suggested that while, at first glance, the language used in Cordova, Guzman, and Contreras requires illegal immigrants be paid lost earning capacity damages at United States rates, it may be more accurate to say the issue of the proper measure of those damages has not yet been fully adjudicated. (20)

3. Federal Immigration Statutes

   In 1986, Congress enacted the Immigration Reform and Control Act ("IRCA"), "a comprehensive scheme prohibiting the employment of illegal aliens in the United States." (21) IRCA defines an "unauthorized alien" as an individual who is not "lawfully admitted for permanent residence, or ... authorized to be so employed" in the United States. (22) One of the most important parts of IRCA is an extensive employment verification system, which requires employers to verify the identity and eligibility of all new hires by examining specified documents before the new hire commences work. (23) The specified documents include a "social security account number card" or any "other documentation evidencing authorization of employment in the Unites States which the Attorney General finds, by regulation, to be acceptable." (24) It is illegal to hire any applicant who fails to provide this documentation. (25)

   In addition to examining specified documents, an employer must also complete an I-9 or other similar form for every new worker. (26) The required form includes an attestation by the employee that he is authorized to work in the U.S. (27) The required form also contains an attestation by the employer that it has reviewed the employee-supplied documents and the documents appear genuine. (28) It is unlawful for an employer to continue to employ an alien once the employer knows "the alien is (or has become) an unauthorized alien with respect to such employment." (29)

   Section 1324c of IRCA makes it "unlawful" for any person to "forge," "alter," "use," or "possess" any false document to obtain a benefit, such as employment. (30) Aliens who use or attempt to use documents described in Section 1324c are subject to a fine or imprisonment of not more than five years, or both. (31) 18 U.S.C. [section] 911 also permits fines and imprisonment of not more than three years if a person "fraudulently and willfully represents himself to be a citizen of the United States." (32) Further, 18 U.S.C. [section] 1015 allows fines and imprisonment of not more than five years if a person "knowingly makes any false statement or claim that he is ... a citizen or national of the United States, with the intent to obtain ... any Federal or State benefit or service, or to engage unlawfully in employment in the United States." (33) Additionally, 18 U.S.C. [section] 1028 provides a fine and imprisonment of not more than fifteen years for anyone who "knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person with the intent to commit, or to aid or abet, or in connection with, any unlawful activity that constitutes a violation of Federal law." (34) 18 U.S.C. [section] 1546 provides the penalty of a fine and imprisonment up to ten years for anyone who "utters, uses, attempts to use, possesses, obtains, accepts, or receives any such visa, permit, border crossing card, alien registration receipt card, or other document prescribed by statute or regulation for entry into or as evidence of authorized sta3Y5 or employment in the United States." (35) Finally, in Texas, it is a state jail felony to obtain, possess, transfer, or use identifying information of another person without the other person's consent. (36) "Identifying information" is defined as "information that alone or in conjunction with other information identifies a person, including a person's name and social security number, date of birth, or government-issued identification number." (37)

4. IRCA Preemption

   Because the statements in cases like Cordova, Guzman, and Contreras are often dicta and cite no authority, it is prudent to look at IRCA and...