Although decided over a decade ago, Rodriguez v. Kline, 186 Cal. App. 3d 1145, (1986) is still the lead case in California regarding immigration status and its relevance to a plaintiff's claim for damages in a personal injury context. The so-called "illegal alien" defense may be raised at trial in limine to obtain a determination as a matter of law that plaintiff is an undocumented alien who is not legally allowed to be employed in the United States. If the Court makes such a determination, the finder of fact must apply the wage scale appropriate in the plaintiff's native country, which can be considerably less than in the United States. Thus, plaintiff's claim for diminished earnings can be substantially reduced.
- Prior to the California Court of Appeal for the Second District's decision in Rodriguez, the law was somewhat split. In Metalworking Machinery, Inc v. Superior Court , 69 Cal. App. 3d 791, (1977) which dealt with discovery issues, it was established that a plaintiff's legal status was discoverable where future wage loss was an issue. However, in Clemente v. State of California, 40 Cal. 3d 202, (1985) the California Supreme Court approved of the trial court's ruling excluding proffered evidence of plaintiff's citizenship (or rather, lack of legal immigration status in the United States) as speculative, remote and hence irrelevant to the damage issue under Evidence Code Section 352. There was no evidence that the plaintiff intended to leave the United States and the court concluded it was speculative to presume that he might be deported sometime in the future. It also concluded that any testimony by plaintiff's wife regarding her husband's immigration status, assuming she was even competent to testify, would be "highly prejudicial".
- However, in an attempt to reconcile the two positions the Court of Appeal in Rodriquez took one step backwards and set out a method for determining the "illegal alien" defense as a matter of law outside the presence of the jury.
- "We are convinced the competing concerns expressed in Clemente can best be reconciled by treating any question regarding a plaintiff's citizenship or lawful place of residence as one of law, to be decided exclusively by the trial court outside the presence of the jury. Resolution of this question is, of course, prerequisite to any ruling upon the admissibility of evidence regarding future earnings.
- Today we require our jurors to perform such intellectually Herculean feats as establishing what actions a truly reasonable man might have taken in a given situation, fixing the appropriate price to be paid for a described amount of subjective pain and anguish, weighing in comparative balance varying degrees, and even dissimilar types, of fault, etcetera, etcetera. Difficult as these labors may be, they nonetheless are of the rheostat variety in that any answer selected necessarily will fall within the applicable range and be capable of finding support in the evidence, i.e., a percentage of fault between none and total; damages in a sum between nothing and millions. However, one's citizenship is comparable only to an on-off switch; a person either is subject to deportation or he is not. If he has been injured through the fault of another, his recovery should not be raised or lowered based upon the probabilities that the law's commands actually will be carried out in any particular instance.
- Therefore, whenever a plaintiff whose citizenship is challenged seeks to recover for loss of future earnings, his status in this country shall be decided by the trial court as a preliminary question of law. (See Evid.Code, s 310.) At the hearing conducted thereon, the defendant will have the initial burden of producing proof that the plaintiff is an alien who is subject to deportation.
- If this effort is successful, then the burden will shift to the plaintiff to demonstrate to the court's satisfaction that he has taken steps which will correct his deportable condition. A contrary rule, of course, would allow someone who is not lawfully available for future work in the United States to receive compensation to which he is not entitled. "
- "We are convinced the competing concerns expressed in Clemente can best be reconciled by treating any question regarding a plaintiff's citizenship or lawful place of residence as one of law, to be decided exclusively by the trial court outside the presence of the jury. Resolution of this question is, of course, prerequisite to any ruling upon the admissibility of evidence regarding future earnings.
- If only it were that simple. There are tomes of treatises and over a century of stare decisis on the very issue of who is subject to deportation from the United States. The labyrinth of regulations and the hodge-podge of contradictory statutory amendments that comprise our immigration law are considered by many to be one of the most complex areas of federal legislation. Given that tens or hundreds of thousands of dollars of potential future earnings may be dependent on the success or failure of the "illegal alien" defense, it is important for counsel to understand that concepts of citizenship and deportability are subject to interpretation.
The Rodriguez Test
- The Rodriquez court sets up as the touchstone for future earnings based on U.S. standards and the plaintiff's eligibility to avoid deportation. However, there are many lawful permanent residents (i.e. aliens who have so-called "green cards"), who are deported each year for various reasons, often times related to criminal activity. Also, under the Marriage Fraud Act of 1986, permanent residency based on a marriage is conditional and must be renewed after two years. Contrarily, there are many aliens who are living in the United States on temporary "nonimmigrant visas", who are allowed to work here under various restrictions.
- In many cases their authorization can be extended up to six or seven years and in some cases, indefinitely. Finally, there are many foreigners who are in limbo, although currently undocumented they are on quota waiting lists and may later qualify for lawful permanent residence. Thus, it is not simply enough to know whether or not the plaintiff has his or her green card. However, since many benefits under the Immigration & Nationality Act can take months to years to perfect, legal action should be taken promptly.
Some Basic Definitions
- Under the Rodriguez test the Courts are going to focus on the issue of deportability and eligibility for discretionary relief. Thus knowledge of a few basic definitions is essential. First, an "alien" means any person who is not a citizen or national of the United States, see section 101(a)(3) of the Immigration and Nationality Act, (I.N.A.) 8 U.S.C. 1101 et.seq. This becomes important when one considers that there is a small but significant number of people who, although born abroad or raised abroad, may claim U.S. citizenship by birth in the United States or through ancestry. Often times the problem is that these individuals have no evidence documenting their U.S. citizenship and applications to the Immigration and Naturalization Services (I.N.S.) or U.S. Passport Office may be very time consuming. Nevertheless, a bona fide claim to U.S. citizenship cannot be overlooked. U.S. citizens are of course not deportable except in the rare case of naturalized citizens who made willful and material misrepresentations when they applied for naturalization.
- However aliens, even those who are lawful permanent residents, can be deported under any of the hundred plus grounds enumerated in Section 241 of the I.N.A. These categories include aliens who entered the U.S. illegally as well as criminals, drug traffickers (no conviction necessary), and terrorists. However some grounds are very innocuous, such as lawful permanent residents who remained abroad for over a year and thereby abandoned their right to live here permanently. However, those who "entered without inspection" or violated the terms of their visas by illegally working or overstaying their legal status comprise the bulk of deportable aliens.
- Although some of the grounds of deportability or excludability can be waived, usually it is required that the alien have a U.S. citizen or permanent resident spouse, parent or child. Finally, it should be pointed out that deportation proceedings are civil in nature. The Courts have long held that the sanction of deportation is not a "penalty" and accordingly all those Constitutional protections that apply in criminal proceedings are inapplicable.
- There is no right to government appointed counsel, jury trials, speed trials, exclusionary rules, or even the formal rules of evidence. Although the right to due process under the 5th Amendment applies, the Administrative Procedure Act is inapplicable and the immigration judges, most of whom were former INS trial attorneys, are still part of the Department of Justice, which also runs the INS. Thus, it will come as no surprise that nearly all aliens who are unlucky enough to be "ordered to show cause" why they should not be deported are found to be deportable.
- Congress, nevertheless, has allowed certain categories of deportable aliens to apply for relief from deportation. Aliens who are not in proceedings may also apply for various benefits under the law.
- It is not the purpose of this article to attempt a comprehensive catalogue of the numerous "pigeonholes" that enable an alien to legalize his or her status, however, they fall into four basic categories: family re-unification, employment related skills, asylum and suspension of deportation. With only a few exceptions the granting of legal status or relief from deportation or is discretionary with the INS or Immigration Court. In many cases, there are quotas that limit the number of aliens who can become permanent residents in any given year. Also, certain countries, such as the Philippines and Mexico, have huge backlogs since quotas limit the number of immigrant visas per year which can be issued to any single country. Thus, timing becomes critical. Finally, there may be two or even three different government bureaucracies involved, the INS, Department of Labor and State Department, each with its own regulations and processing delays.
Family Re-Unification Categories
- Aliens who are the parents of U.S. citizens over 21 years of age, unmarried children under 21 of U.S. citizens (usually naturalized) or married to U.S. citizens may become permanent residents and are not subject to quotas. Also, unmarried sons, daughters and spouses of permanent residents, adult children of U.S. citizens and siblings of citizens over 21 years old may qualify for preference under the quota system. Benefits gained through a marriage of less than two years duration are conditional and must be re-validated in regard to the bona fides of the marriage after a two years probation period. If it is determined that the marriage was solely for immigration purposes the alien can lose his or her legal status and becomes deportable.
Employment Related Skills
- If an alien has a job offer for which it can be demonstrated that there are no minimally qualified "American workers" available and prevailing wage and labor conditions are met, he or she may be granted a labor certification. This requirement may be waived for certain professionals, intra-company transferees, religious workers and aliens of extraordinary ability in the science, arts and business. However, it is not necessary to be an engineer or systems analyst to qualify. There are many skilled and semi-skilled occupations, such as specialty cooks or auto mechanics, which may qualify. Although the quota for professionals and skilled workers is usually open, unskilled workers may have to wait several years for quota numbers.
Asylum
- Aliens who have a well founded fear of persecution on the account of race, religion, nationality, membership in a particular social group, or political opinion may be granted asylum in the United States. One year thereafter, subject to quota limitation, they may apply for lawful permanent residence. Due to recent changes in the law, asylum is not as easy to apply for as it has been in the past. However, new grounds including persecution based on gender bias and sexual orientation have been recognized by the courts.
Suspension of Deportation
Although it is a discretionary defense which must be applied for in deportation proceedings, aliens who have lived continuously in the United States for seven years, whether legally or undocumented, can apply for this relief. In addition to showing that they are persons of good moral character (which usually means no serious criminal record), they must show that if they were deported it would result in "extreme hardship" to themselves and/or a parent, spouse or child who is a U.S. citizen or lawful permanent resident. Although many of the cases granted involve parents of school age U.S. citizen children or aliens who have serious medical problems, there is an emerging line of cases which considers the "Americanization" of an alien as one of the factors that can be considered.
Nonimmigrants and All the Rest
- There are many aliens who reside in the United States on temporary nonimmigrant visas. As long as they maintain their status and are eligible to renew their permission to remain here, they are not deportable. Some of these nonimmigrants have employment authorization and are allowed to work within certain very specific parameters.
- Often times stays can be extended to six or seven years and certain classes may renew their stays and employment authorization for an indefinite period. Surely, these aliens should be entitled to some extent to loss earnings based on a U.S. standard even though they are not lawful permanent residents.
- Finally, under INS regulations various classes of deportable aliens may be allowed to temporarily stay in the United States and be granted work authorization due to humanitarian reasons or other grounds .
Preparing to Meet the "Illegal Alien Defense"
- Plaintiff's counsel should retain an immigration law expert as soon as the issue becomes apparent. Although it may take five years to get to trial, it may take equally as long to obtain a legal immigration status. Preventive law is the key. The immigration law expert should personally interview the plaintiff making sure that any language problem is corrected by use of a qualified and experienced translator. The expert should be aware of any criminal, prior immigration or deportation history.
- Plaintiff's trial counsel should follow up with the immigration law expert and the client to make sure the case is progressing properly. Sometimes the client, who has not previously considered his illegal immigration status to be significant, needs encouragement to obtain the necessary documentation and complete the required forms. Make sure your client is aware that leaving the United States, fraudulent statements to the INS or American Consul or even minor criminal acts involving drugs or guns can result in deportation or a bar to future legal benefits.
Conclusion
- It was naive of the Rodriguez court to think that deportability is like an on-off switch. Immigration law is a complex and dynamic area of federal regulation of which the State courts have very little comprehension. There are many factors that can affect an alien's ability to legally remain in the United States. The issue is by no means as black and white as the Rodriguez decision implies. It is for this reason that the effective use of an immigration law expert can be critical in maximizing recovery when future earnings are a significant portion of plaintiff's claim.