Can Their Immigration Status Be Brought Up At Trial?

Undocumented workers in Indiana—and indeed everywhere in the United States—have a lot to worry about. In addition to not having access to many of the government services on which many of us rely, many employers will not hire undocumented workers. Even if an undocumented worker is able to find an employer willing to hire, actually receiving a paycheck and then paying appropriate taxes can be a chore. To some in this country, that is as it should be—after all, if someone wants to work and live in this country, they ought to come here legally. To others, it is very unfair—if someone risks their life to come to this country, they ought to be able to pursue their American dream.

That debate notwithstanding, Indiana’s highest court recently issued a new, sweeping protection that makes life a little more certain for undocumented immigrants.Alexander J. Limontes The Indiana Supreme Court held that an undocumented immigrant who is injured by someone else’s negligence can sue for future lost earnings in the United States, and their immigration status cannot be admitted into evidence unless the other side can show the immigrant is going to be deported. This overturned the previous Court of Appeals decision. The Plaintiff’s case was argued, in part, by one of our office’s personal injury lawyers, Alexander J. Limontes.

A plaintiff can sue for future lost earnings if, as the result of an injury caused by someone else, the plaintiff’s capacity to earn money is permanently reduced. To prove lost future earnings, a plaintiff will need to produce evidence showing an estimate of the amount the plaintiff would have earned if he or she had not been injured and an estimate of how much the plaintiff can now earn with his or her injuries. If effectively proven, the court will award the difference between the two numbers. But what happens when a plaintiff with a reduced earning capacity is an undocumented immigrant who cannot legally work in the United States? Can the plaintiff sue for lost future earnings? And if so, are his or her lost wages based on what he could have earned in the United States or in his or her native country?

Escamilla v. Shiel Sexton

These very questions were answered by the Indiana Supreme Court earlier this month in Escamilla v. Shiel Sexton Co., Inc. Escamilla came to the United States with his mother as a teenager, married an American citizen, had three children, and worked his entire adult life in this country. He was working as a masonry worker for a sub-contractor when, due to treacherous worksite conditions allowed to exist by the general contractor, Shiel Sexton, he was injured on the job. He was left with a severe back injury that rendered him permanently unable to lift enough weight to continue as a masonry worker.

Escamilla’s damages included lost future earnings—Escamilla v. Shiel Sexton: Can Undocument Immigrants Sue?according to his expert witnesses, the difference between the amount of money he would have made and the amount of money he could now make could be as high as one million dollars. The defendant argued that Escamilla could not sue for lost future earnings because as an illegal immigrant he cannot legally work in the United States and that even if he could sue for lost future earnings, his immigration status meant his lost future earnings should be calculated based on what he would have made in his native Mexico. The Court disagreed with both arguments.

Can Undocumented Immigrants Sue For Future Lost Wages?

The Court made quick work of the defendant’s first argument by citing Section 12 of the Indiana Constitution. Section 12 of the Indiana Constitution is known as the Open Courts Clause, and it provides: 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 clause, the Court noted, applies to every person. The United States Supreme Court as well as several state courts have all held similar clauses using the term “person” apply to undocumented immigrants.  Referencing these other decisions, the Court held that Escamilla’s status as an undocumented immigrant did not change the fact that he was a person deserving the protection of the Open Courts Clause. Therefore, Escamilla was free to sue for lost future earnings.

Whether those earnings should be calculated based on what he could earn in the United States or his native Mexico was a question of fact left up to the jury. If Escamilla could convince them he was not likely to return to Mexico, he could calculate his earnings based on US wages.

Can Plaintiff’s Undocumented Status Be Brought Up?

The answer here is less definitive, but in most cases will be no. The Court held that the defendant could present Escamilla’s immigration status to the jury in response to his claim for lost future US earnings, but only if the defendant could show by a preponderance of the evidence that Escamilla will be deported, which will be a hefty burden.


Put simply, undocumented immigrants in Indiana no longer have to worry that they won’t be made whole if they are injured by someone else’s negligence. Undocumented immigrants live a life of uncertainty—in employment, housing, domestic relations, and virtually every other aspect of life. But thanks to the Indiana Supreme Court, they no longer have to deal with uncertainty in the face of serious injury at the hands of a negligent person.