Benny Agosto, Jr. & Robert Rodriguez*

It is the classic scenario. The Plaintiff, an undocumented worker, is injured at work. A lawsuit follows as a result of someone’s negligence. The trial begins, and the Defendant immediately attempts to present evidence to the court and jury that the Plaintiff is an illegal immigrant. Defendants use words like “illegal” and “alien” while attempting to present evidence during the trial. The objective is to prejudice the trier-of-fact with these pernicious words. The question to be answered is whether the Plaintiff, as an undocumented worker, is entitled to lost wages resulting from an injury? This has been the subject of debate and controversy in courtrooms over recent years. Courts, however, have been clear on this issue: undocumented migrant workers who are injured can sue for lost wages.

In 2000 it was estimated that 7 million illegal immigrants were living in the United States. This figure grew by approximately 350,000 persons each year. Presently, the number of illegal immigrants living in the United States is close to 12 million. Illegal immigrants from Mexico account for about 5.3 million of the total illegal immigrants living in the United States, with an additional 170,000 legally entering this country each year. These numbers are the spark that has produced a firestorm of controversy.

“We should not be content with laws that punish hardworking people who want only to provide for their families . . . It is time for an immigration policy that permits temporary guest workers to fill jobs Americans will not take, that rejects amnesty, that tells us who is entering and leaving our country, and that closes the border to drug dealers and terrorists.”–President George W. Bush.

“Our nation has been strengthened by generations of immigrants who became Americans through patience and hard work and assimilation. In this new century, we must continue to welcome immigrants, and to set high standards for those who follow the laws to become a part of our country.”—President George W. Bush.


President Bush’s comments, quoted above, reflect the important role illegal immigrants are currently playing in the United States’ economy. The average illegal immigrant family pays more than $4,200 in annual federal taxes, while earning less than the average annual salary of $36,700.00. Fifty to Eighty Five percent of the country’s 1.6 million farm workers are illegal immigrants. Immigrant workers play a critical service in keeping hotels operating affordably, by taking jobs American-born workers don’t want. Of the 12 million food service workers in the United States, 1.4 million are believed to be immigrants, 500,000 of them from Mexico. Forty percent of the workers in the New York restaurant industry are undocumented. Recent studies have shown illegal workers hold 1 in 20 civilian jobs in this country. Illegal immigrants from Mexico tend to be young, predominately male, struggling with the English language and employed in construction, manufacturing and the hospitality industry. The reality of illegal immigrants in America stands in stark contrast to the fears engendered by their presence.

In the debate over national security, there is the association of illegal immigration with the threat of terrorists and weapons of mass destruction entering the United States. Since 2001, 3000 Border Patrol agents have been hired to stop “illegals” coming in from Mexico, an increase of 30 percent. Recently, a group called the Minuteman Project was created whereby private citizens patrol sections of the border between the United States and Mexico. The Minuteman Project accuses the federal government of sleeping on the job and handing America to the law-breakers.

Currently up for vote in Congress is a bill that has recently passed the Senate Judiciary Committee on a guest-worker visa program which creates a path to citizenship for illegal immigrants that would take up to 11 years and require that immigrants hold jobs, demonstrate proficiency in English, pass criminal background checks and pay fines and back taxes. Herein lies the controversy that has divided those in Congress, some of whom accuse the bill of granting amnesty to undocumented immigrants while its supporters call it earned citizenship. Senator Jeff Sessions of Alabama went so far as to suggest that they add language to the bill stating that it should be called “No Illegal Alien Left Behind.” Conservatives want harsher penalties for undocumented immigrants. For example, they want to make it a felony crime to be in this country illegally. As such, they would go to prison, eventually be deported to their home countries and forever be unable to legally return to the United States under any circumstances. But in reality this is not a viable option and both sides realize a compromise will need to be made.

“This is one of the greatest challenges we face in our time, securing our borders, taking 11 million people out of the shadows that are exploited everyday, fulfilling the job requirements we all know are necessary to ensure the economic future.”- John McCain.

The fear associated with illegal immigrants is not new. Courts throughout this nation have examined, and attempted to insulate against, the prejudices that a plaintiff, who is an injured illegal immigrant, encounters in trying to obtain a fair trial. The debate over illegal immigration, however, is currently at the forefront of policy in the United States, and attorneys who represent injured illegal immigrants must be acutely cognizant of the prejudices that the American people are exposed to during this debate.


In Texas, evidence of a person’s alien status is not permissible to bias or inflame a jury, nor is it permissible as a bar to recapturing lost and future earnings. In Wal-Mart Stores, Inc. v. Cordova, the plaintiff, an illegal alien, brought suit after sustaining injuries while shopping. Plaintiff sought to recover for her injuries and her lost earning capacity. The defendant argued, as a basis for denying loss of earning capacity, that plaintiff was not a citizen of the United States and that there was no evidence that she possessed employment authorization in order to legally work in the United States. The court stated that 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, and that the court would not espouse such a theory. Thus, the court held that evidence pertaining to plaintiff’s loss of earning capacity was properly before the court and supported the jury’s finding.

Approximately ten years later, the court in Tyson v. Guzman, reaffirmed the Cordovadecision, in holding that “Texas law clearly allows for the recovery of damages for lost earning capacity, regardless of the claimant’s citizenship or immigration status.” Tyson subcontracted with Jerry Collum (“Collum”) to provide labor for catching chickens at various farms for future processing at Tyson’s plants. Plaintiff was one of Collum’s employees and had been working for him for nine years as a chicken catcher. On July 30, 1998, plaintiff was in the process of rounding up chickens when a Tyson employee ran into plaintiff with a forklift. As a result of the accident, plaintiff suffered spinal and nerve damage and endured a potentially paralyzing surgery to regain some limb movement. Plaintiff sued Tyson, and following a jury trial, the trial court’s final judgment awarded plaintiff $ 745,496.41. On appeal Tyson argued that the trial court erred when it refused to exclude Dr. Carl Hansen, plaintiff’s expert witness on his lost earning capacity, because Dr. Hansen erroneously assumed that plaintiff was legally entitled to work in the United States. Because plaintiff was not a United States citizen and was not otherwise authorized to work in the United States, Tyson concluded that he was not entitled to receive any compensatory award for lost earning capacity. Tyson cites the recent United States Supreme Court case of Hoffman Plastic Compounds, Inc. v. National Labor Relations Board,for the proposition that “national public policy, as expressed by the United States Congress in enacting immigration reforms, militates against any award of wages as damages to undocumented alien laborers.”

The court of appeals disagreed. First, the court reasoned that the Hoffmanopinion only applies to an undocumented alien worker’s remedy for an employer’s violation of the NLRA and does not apply to common-law personal injury damages. Texas law, the court held, does not require citizenship or the possession of immigration work authorization permits as a prerequisite to recovering damages for lost earning capacity. Third, the court stated that Tyson’s contention seems to be in the nature of a federal preemption defense, which is an affirmative defense and must be raised in the trial court. The court of appeals found that Dr. Hansen’s opinion was not unreliable because plaintiff was entitled to receive compensation for lost earning capacity even though he was not a citizen of the United States.

In Commercial Standard Fire and Marine Company v. Galindo, the court considered whether evidence of a person’s illegal status would prevent him from being an employee within the meaning of the Workmen’s Compensation Act of Texas and from qualifying for benefits. The court found support for its conclusion that such evidence could not be used to bar recovery in 42 U.S.C.A. § 1981:

All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as it enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and ex-actions of every kind, and to no other.”

After pointing out that an illegal alien is not barred from prosecuting his action for personal injuries, the court concluded that an alien cannot be barred, by reason of his immigrant status alone, from receiving workmen’s compensation benefits.


The New York Court of Appeals recently, February 2006, reversed the decision of the New York State Supreme Court saying that undocumented migrant workers can sue for lost wages if they are hurt on the job. In Balbuena v. IDR Realty LLC, the Plaintiff was an illegal immigrant who fell from a ramp while working, sustaining severe injuries that rendered him unable to work. As in Guzman v. Tyson, supra., the Defendant, IDR Realty, similarly based his arguments on Hoffmanand violations to Immigration Reform and Control Act. However, the Plaintiff in Balbuena, unlike the immigrant in Hoffman,did not commit a criminal act under IRCA by providing fraudulent paperwork to employer. It is also important to note, IRCA does not make it a crime to work without documentation. The court in Balbuenathen reiterated that the provisions of the National Labor Relations Act, the purpose of which is to protect employees and provide remedies against illegal actions by employers, could be applied to employment practices that affect undocumented workers. In their holding the court in Balbuenamade it clear that the mere presence of undocumented workers in the United States, whom have not violated the IRCA, is not an adequate reason to justify precluding them from the lost wages to which they are entitled to for their injuries. Based on the opinion in Balbuena, the court showed it is in the best interest of the state of New York are more focused on protecting its workers from injuries than punishing them for being undocumented, by allowing these workers to sue for lost wages.


Undocumented workers can sue for lost wages. The term “illegal alien”, now more than ever, creates a great deal of fear and distrust in our society. This fear will undoubtedly find its way into a courtroom and prejudice an injured illegal alien’s right to a fair trial and their ability to make a lost wages claim. As illustrated by this paper, courts throughout this nation recognize the prejudice that is engendered within the term “illegal alien” and have tried to strike a balance between this prejudice and its possible relevance. Texas has made its position clear that any relevance the alien status of an injured plaintiff may have in a particular case has absolutely no bearing on his ability to make a claim for lost wages.

*Benny Agosto, Jr. is a partner with the law firm of Abraham, Watkins, Nichols, Agosto, Aziz & Stogner in Houston, Texas. Mr. Agosto is Board Certified in Personal Injury Trial Law. Mr. Agosto is President of the Mexican American Bar Association of Texas and is a member of the Texas Supreme Court Advisory Committee. Mr. Agosto is Chair of the Editors Board for the Texas Bar Journal,is the Co-Editor in Chief of the Hispanic National Bar Association (HNBA) Journal of Law & Policyand is on the Editors Board of the State Bar Litigation Section Reporter, The Advocate. He is also a frequent lecturer and speaker in areas of litigation throughout the state.

*Robert Rodriguez is a third year law student at the Thurgood Marshall School of Law and law clerk with the firm Abraham, Watkins, Nichols, Agosto, Aziz & Stogner in Houston, Texas.

[i] Estimates of the Unauthorized Immigrant Population Residing in the United States: 1990 to 2000, Office of Policy and Planning U.S. Immigration and Naturalization Service, 1. See alsoTodd Dayton , The New World, America’s Borders in an Age of Terrorism,available at See alsoBenny Agosto, Jr., Can the Injured Migrant Worker’s Alien Status be Introduced at Trial?30 T. Marshall L. Rev. 383 (2005).


Jeffrey S. Passel, Randy Capps, & Michael Fix, Undocumented Immigrants: Facts and Figures (Jan. 12, 2004).

From 1999 to 2003, the U.S. government legally admitted an average of 172,632 immigrants per year. U.S. Citizenship & Immigration Services, available at

Daniel Borunda, Immigrant policy mentioned; Bush too vague some say, El Paso Times, February 3, 2005, at 2A.

George W. Bush, President discusses border security and immigration reform in Tuscon, Arizona at Davis-Monthan Air Force Base (November 28, 2006).

Staff Editorial, Higher education for all, Cavalier Daily via U-Wire, February 16, 2005.

Dave Montgomery, Mexican immigrants open to guest-worker program, survey finds, Fort Worth Star–Telegram, March 3, 2005.

Sergio Bustos, Bill would give legal status to undocumented farm workers, Gannett News Service, February 11, 2005.

John P. Walsh, Labor pains: immigration reform could ease employment strain, Hotel & Motel Management, February 6, 2004, at No. 3, Vol. 219, pg. 1.

Milford Prewitt, Immigration reform push offers relief for job woes; legislative agendas revived despite lingering terrorism worry, Nation’s Restaurant News, August 16, 2004, at No.33, Vol. 38, pg. 1.


Gebe Martinez, Illegal workers hold 1 of 20 civilian jobs, research says, Houston Chronicle Washington Bureau, March 7, 2006.

Dave Montgomery, Mexican immigrants open to guest-worker program, survey finds, Fort Worth Star–Telegram, March 3, 2005.

Lisa Friedman, License ban tacked on bill, Inland Valley Daily Bulletin (Ontario, CA), March 19, 2005 (“Advocates of the license ban, sponsored by Rep. James Sensenbrenner, R-Wis., maintain that keeping legal identification documents away from those in the United States illegally is a border-control measure that will thwart terrorists from entering the country.”); See also, National Journal Croup Inc., SECURITY: Border-patrol Strategy Encompasses ‘full-court Press’, National Journal’s Technology Daily, April 6, 2005.

George W. Bush, President discusses border security and immigration reform in Arizona, Davis-Monthan Air Force Base, Tucson, Arizona.

David Solana, American revelation, Daily Illini via U-Wire, March 31, 2005; See also, Pete Prince, Bush gets it right with immigration policy, University Daily Kansan via U-Wire, January 24, 2005.


Karen Tumulty, Should They Stay or Should They Go, Time Magazine, April 2, 2006. at 30, 32.

The Immigration debates war of words,, April 10, 2006.

Rachel Swarns and John O’neil, Senate Vote on Immigration Close, Frist Says, The New York Times, April6, 2006.

856 S.W.2d 768, 769 (Tex. App. — El Paso 1993, writ denied).


Idat 770.

Idat 771; see also Tyson Foods, Inc. v. Guzman, 116 S.W.3d 233, 244 (Tex. App. — Tyler 2003, no writ).

Wal-Mart Stores, Inc., 856 S.W.2d at 771.

Tyson Foods, Inc., 116 S.W.3d at 244. See generally, Bustos v. Able Crushed Concrete, No. 01-01-00075-CV (Tex. App.-Houston [1 stDistrict] Oct. 17, 2002, no pet.) (not designated for publication), 2002 WL 31319905. (Plaintiff was convicted of forgery for using a false social security card, but the Plaintiff waived any error when Plaintiff referred to the conviction himself in his opening statement to the jury.)

Id. at 236–37.

Id. at 237.


Tyson Foods, Inc., 116 S.W.3d at 242.

Id. at 243.


Id. at 244.




484 S.W.2d 635, 636 (Tex. Civ. App. — El Paso 1972, writ ref’d n.r.e.). Section 406.092 of the Workmen’s Compensation Act of Texas provides as follows:

(a) A resident or nonresident alien employee or legal beneficiary is entitled to compensation under this subtitle.

(b) A nonresident alien employee or legal beneficiary, at the election of the employee or legal beneficiary, may be represented officially by a consular officer of the country of which the employee or legal beneficiary is a citizen. That officer may receive benefit payments for distribution to the employee or legal beneficiary. The receipt of the payments constitutes full discharge of the insurance carrier’s liability for those payments.

Idat 637.


Mark Johnson , Court says illegal workers can sue for lost wages,, February 21, 2006.

2006 N.Y. Lexis 200; 2006 NY Slip Op 1248