Immigration Status Inadmissible

Background    

Plaintiff Alex Salas was employed by Charter Construction and worked on a construction project at the San Villa condominium complex in Northgate, Washington. Charter Construction contracted with Hi-Tech Erectors to erect scaffolding at the construction site. Salas had to climb a ladder on the scaffolding to reach some windows. The day was wet, and the ladder did not have a textured surface to prevent slipping. Salas slipped and fell more than 20 feet, severely injuring himself.

Salas brought a negligence suit against Hi-Tech. The trial court determined that the ladder did not meet code requirements. However, pre-trial deposition testimony revealed that Salas was an illegal alien. Salas moved in limine to exclude evidence of his immigration status. The trial court held that Salas’ immigration status did not preclude him from recovering damages for lost future income. However, the trial court found that evidence of his immigration status was relevant and admissible. The trial court recognized that some jurors might be “so hung up on the immigration issue that they would really take it out on him,” but it decided that the evidence was probative in determining whether Salas’ lost future income would be in U.S. dollars or the currency of his home country.

By special verdict, the jury found in favor of Hi-Tech. It found that that Hi-Tech was negligent but that Hi-Tech was not the proximate cause of Salas’ injuries.

Decision

Salas appealed and the Court of Appeals affirmed. The Washington Supreme Court granted review and reversed, holding that the trial court abused its discretion by admitting evidence of Salas’ immigration status when Salas sought damages for lost future income. Salas v. Hi-Tech Erectors, 168 Wn.2d 664, 230 P.3d 583 (2010).) It remanded the case for further consideration by lower courts.

The Supreme Court noted that Salas’ immigration status was the only evidence in the record suggesting that he might be deported and, therefore, would be unable to earn wages in the United States. Other evidence showed that Salas had resided in the United States since 1989 and had lived without a visa since 1994; he had worked in the Seattle area since 1990, paid taxes, purchased a home and had three children in the United States; and there was no evidence in the record of pending removal proceedings or a deportation order.

The Supreme Court also noted that based solely on Salas’ immigration status, his risk of being deported was exceptionally low, citing statistics from the U.S. Department of Homeland Security that less than 1 percent of the unauthorized immigrant population was apprehended in 2008. The Supreme Court also noted that even if apprehended, illegal aliens are not necessarily ordered deported.

The Supreme Court concluded that the trial court was correct in deciding that Salas’ immigration status was relevant to the issue of lost future earnings, noting that the admissibility standard for evidence was low. However, the Supreme Court held that evidence of immigration should have been excluded as unduly prejudicial under Washington Evidence Rule 403, which provides: “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.” It noted that other courts had come to the same conclusion about immigration status.

The Supreme Court wrote:

We recognize that immigration is a politically sensitive issue. Issues involving immigration can inspire passionate responses that carry a significant danger of interfering with the fact finder’s duty to engage in reasoned deliberation. In light of the low probative value of immigration status with regard to lost future earnings, the risk of unfair prejudice brought about by the admission of a plaintiff’s immigration status is too great. Consequently, we are convinced that the probative value of a plaintiff’s undocumented status, by itself, is substantially outweighed by the danger of unfair prejudice.

The Supreme Court held that the probative value of a plaintiff’s undocumented immigration status was outweighed by the danger of unfair prejudice in deciding lost future earnings and such evidence should have been excluded from the trial.