Litigation and the Undocumented
Published: October 14, 2010

An important question that gets asked from time to time: Can an individual residing in the U.S. without legal immigration status access a federal or state civil court to recover damages for a contract breach, personal injury, or to facilitate a divorce? To the surprise of many, – almost always, YES!

In general, one’s ability to protect or assert their rights in a civil dispute – for example, relating to a contract breach, personal injury or divorce case – does not depend on the individual’s immigration status. The undocumented are not prevented by law from suing to collect money on a loan, to recover for damages as a result of a physical injury from a car accident or botched medical procedure, or to facilitate a divorce. The same applies for an undocumented individual who is being named as a defendant in a lawsuit – whether for contract breach, injury or divorce. The undocumented defendant is not prevented from defending himself just because he lacks lawful immigration status.

What about threats from the other side, such as: “if you do this or that…..I am going to have you deported?” Firstly, no single individual has the power to have someone deported, although nothing prevents them from saying these words, or even calling immigration authorities. Absent threats of terrorism though, the chances of authorities acting on a private citizen’s report of an undocumented individual living in our midst (among the other 15 million) are quite low.

What happens when I walk into a courtroom? Won’t a judge or other court personnel see to it that I am deported? No way.  Absent some really strange circumstance, the players in our civil judicial system have no interest in the immigration status of litigants, and that is assuming they even are in a position to understand a person’s immigration status and distinguish the documented from the undocumented. With an individual’s immigration status having no impact whatsoever on their rights as set forth in the underlying contract or statute, judges in civil courtrooms do not have, nor do they want, jurisdiction pertaining to the immigration status of litigants before them.

Of course, the reality is that much of the time an undocumented individual may be averse to putting himself in a situation where he is confronted with any of these issues or any legal system, on the chance, however remote, his stay in the U.S. could be endangered. This fear, although real, is usually not commensurate with the true risks at play – which are practically nonexistent. In truth, other than being in an especially vulnerable psychological state, an undocumented litigant is usually no worse off than a documented litigant when it comes to accessing our courts for any purpose. But to get an assessment of what, if any, risks an undocumented litigant faces in any given circumstance, a consultation with an immigration lawyer should put most questions to rest.

Copyright © 2010, By Law Offices of Richard Hanus, Chicago, Illinois