If someone runs you over or drops an anvil on your head, your citizenship has nothing to do with anything. Unfortunately, every defense attorney will want to cross-examine you about your immigration status in a last-ditch attempt to turn a jury against you. Even worse, some particularly obnoxious defense attorneys will hang the threat of deportation over your head to coerce you into dismissing your case. Fortunately, immigration status is often irrelevant in a personal injury case. Even when it’s relevant, a question about your immigration status better not become a thinly veiled threat to report you to immigration authorities.
When Is a Plaintiff’s Immigration Status Admissible?
Defendants often argue that a plaintiff is in the country illegally is relevant because it tends to disprove his credibility. In fact, such evidence is inadmissible to attack his credibility if it’s relevant only because it tends to prove he’s lying.1 The catch is that evidence of a plaintiff’s immigration status isn’t relevant to much else. For example, in a car accident, the plaintiff’s immigration status doesn’t tend to disprove his allegation that the defendant ran the red light and doesn’t tend to disprove the amount plaintiff claims will compensate his pain and suffering is reasonable.2
But evidence of a plaintiff’s immigration status tends to prove or disprove his loss of future earnings.3 For example, suppose a 25-year-old plaintiff works 40 hours per week for minimum wage ($10), when he’s in an accident and sustains a disability that prevents him from working again. If he would’ve retired at 65, his loss of future earnings would total $832,000 (i.e., $10 at 40 hours per week for the next 40 years). But his future earnings would be much different if his lawful place of residence were Mexico. Because the Mexican minimum wage is only 62 cents per hour, his loss of future earnings dwindles to $50,918.
Even if a plaintiff’s immigration status is relevant, a court can only admit such evidence during an in limine proceeding outside the presence of the jury. The defendant must first prove that the plaintiff is “subject to deportation.” If the defendant carries that burden, the burden shifts to the plaintiff to prove that he “took steps” to correct his deportable condition (e.g., he petitioned for an adjustment of his status). If the plaintiff carries that burden, the court must exclude all evidence of his immigration status and base his loss of future earnings on his past and future income in the U.S.
Why a Defense Attorney Who Threatens an Undocumented Plaintiff Is on Thin ICE
Even if a defense attorney can use evidence of a plaintiff’s immigration status, he better not let a question about immigration status become a thinly veiled threat to report the plaintiff to Immigration & Customs Enforcement (ICE), the District Attorney, or any other public entity. That’s because the attorney might lose more than a case; he might lose his license to practice law. Rule 5-100 of the California Rules of Professional Conduct prohibits a member of the State Bar of California from (1) “threaten[ing] to present criminal, administrative, or disciplinary charges (2) to obtain an advantage (3) in a civil dispute.”
Rule 5-100 has three elements. First, an attorney must “threaten” to present charges. The rule doesn’t prohibit him from reporting a plaintiff to ICE. Second, the attorney must threaten the charges to obtain an “advantage.” But the “advantage” doesn’t have to be an all-out victory or a low-ball settlement. Rather, the advantage can be a mere extension of time to answer the plaintiff’s discovery requests. Third, the attorney must make the threat in a civil “dispute.” Thus, the rule applies during any “controversy or potential controversy…under civil law, whether or not an action has…commenced.”4