December 2012 • Volume 100 • Number 12 • Page 626
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Federal court: illegal alien’s recovery limited to foreign earning potential
An undocumented alien can sue his former employer, but his recovery for future earnings is limited to what he could make outside of the U.S., an Illinois-based federal court ruled.
A federal court in Illinois has ruled that an illegal alien has standing to sue his former employer for civil damages, but the immigrant's future-earnings damages must be limited to what he could lawfully earn outside of the United States.
The federal decision seems to answer a longstanding question about whether undocumented immigrants may use courts in Illinois to recover damages in civil actions, but local attorneys warn that our state courts might rule otherwise, as other states have already done.
"While this federal case opines on what the Illinois Supreme Court would do in this situation, we really do not know what the Illinois high court will do, especially where the states are divided on this issue," said Boyd & Kummer LLC partner Juliet E. Boyd, who is a member of the ISBA International and Immigration Law Section Council.
Because of a lack of state-court precedent, Illinois lawyers who represent non-citizen immigrants have been unsure about whether their clients can recover damages for future earnings in civil actions related to personal injuries. (See Douglas A. Wolfe's The Illegal Immigrant as P.I. Plaintiff: Determining Lost Wages in the June 2012 IBJ.)
In the recent decision of Wielgus v. Ryobi Technologies Inc., et al., et al., No. 08 CV 1597, a magistrate judge from the U.S. District Court for the Northern District of Illinois held that the plaintiff, who was an "undocumented or unauthorized alien," has standing to sue his former employer for damages stemming from an on-the-job injury, but any damage award must be based solely on evidence of his earning capacity on foreign soil.
"Wielgus is permitted to introduce evidence to demonstrate that he suffered economic damages as a result of his injuries," Magistrate Judge Young B. Kim wrote in a memorandum opinion and order, "but he must restrict his evidence to what he could lawfully earn outside the United States."
A split in the courts
In 2002, the U.S. Supreme Court ruled that an unauthorized alien has no right to recover back pay from a U.S. employer, because allowing that would be inconsistent with the goals of the Immigration Reform and Control Act of 1986. Hoffman Plastic Compounds Inc. v. NLRB, 535 U.S. 137. But Hoffman Plastic did not answer the question in terms of future wages and earning potential.
State and federal courts around the country have split on the issue. In Kansas, for example, a court in 2003 relied on Hoffman Plastic in ruling that an undocumented alien was barred from seeking recovery of lost wages, both past and future, because the alien was not entitled to work in the U.S. Hernandez-Cortez v. Hernandez, 2003 WL 22519678.
In New York, however, a court in 2006 determined that undocumented aliens are only prohibited from recovering civil damages related to illegal conduct. The court held that under IRCA, working a job in the U.S. is only illegal for non-citizens if the worker secured employment through false documentation. An alien who obtained a job without using false documents could recover lost wages and future earnings for his injury. Balbuena v. IDR Realty LLC, 845 N.E.2d 1246.
As for Illinois, Boyd said Wielgus is at least one precedent suggesting that the local rule prohibits recovery of back pay for aliens injured on the job but does allow recovery of future wages based on an earning potential in the plaintiff's country of citizenship.
"Although these clients suffer injuries like everyone else, their status may complicate their ability to be made whole under our current statutory framework," Boyd said. "In the aftermath of Hoffman Plastic, it is good that the recovery of lost future earnings was allowed under Illinois law even though this damage was limited to what the person could earn in their home country."
No Illinois ruling yet
However, Boyd warns practitioners that state courts have not yet adopted the federal court's conclusions in Wielgus, and state judges could disregard Wielgus and adopt the Kansas rule or make some other hybrid rule unique to Illinois.
"Tort law practitioners should be aware of and identify these issues early because their clients' immigration status will affect not only what claims they can bring, but also the amount of their damages and the evidence they will need to obtain," Boyd said.
For his part, immigration-law attorney Patrick M. Kinnally, a partner with Kinnally, Flaherty, Krentz & Loran PC, thinks Illinois courts would choose a more liberal rule than that established in Wielgus, perhaps following precedent from New York and elsewhere that allows all recovery in cases where the alien did not use false documentation to obtain employment.
"The opinion in [Wielgus] is one the Illinois Supreme Court would not adopt," Kinnally said. "I believe our court would adopt the New York, California, or Washington approaches."
Boyd said these issues have been a hot topic of discussion among her fellow section council members, and among her colleagues in the international and immigration law bar. "Immigration always elicits strong opinions," she said.