Undocumented Immigrant Rights in New York Personal Injury Law
New York City is about immigrants. More than 12 million immigrants entered the United States through Ellis Island, which was long a part of New York. Ellis Island was one of the busiest immigration inspection stations for more than five decades. New York City’s Statue of Liberty welcomes immigrants on its plaque, saying, “Give me your tired, your poor/Your huddled masses yearning to breathe free.” Many of New York City’s American citizens are from elsewhere in the country.
Immigrants do some of the dirtiest and most dangerous jobs in New York City. Immigrants are particularly involved in construction work, which is one of the most dangerous jobs in the City.
What rights do immigrants have when they get hurt?
When an Undocumented Immigrant Gets Hurt, Does that Person Have the Same Right to File Suit in New York?
Yes. In short, the undocumented immigrant has the same rights as anyone else to bring a personal injury lawsuit when hurt in New York.
Balbuena v IDR Realty LLC, 6 NY3d 338  is a leading case on an undocumented immigrant suing for personal injury damages including lost wages. In it, an undocumented immigrant was injured doing construction work. He sued the site owners for negligence, violating construction safety laws (New York Labor Law), and sought lost wages and other relief.
New York State’s highest Court held:
“The Labor Law [ ] applies to all workers in qualifying employment situations—regardless of immigration status—and nothing in the relevant statutes or our decisions negates the universal applicability of this principle…Additionally, limiting a lost wages claim by an injured undocumented alien would lessen an employer’s incentive to comply with the Labor Law and supply all of its workers the safe workplace that the Legislature demands.” Balbuena v IDR Realty LLC, 6 NY3d 338, 359 .
Undocumented Immigrants Testify in Personal Injury Cases
The injured person will still need to testify at a deposition and at trial. That may be particularly daunting for an undocumented immigrant.
The fear is legitimate as well. The current presidential administration made immigration enforcement a priority. The federal government conflicted with New York State policy when United States Immigration and Customs Enforcement (ICE) began patrolling New York City courthouses looking for immigration violations.
Unlike a criminal case, a civil case for an injured undocumented worker means that a company was negligent and caused a serious injury. The undocumented person is a victim. If a lawsuit does not hold the negligent person or company accountable, it is likely to commit the same violation again.
The injured person can prepare for depositions and trial. To answer questions about immigration status, some scholars suggest that undocumented immigrants should plead the fifth in a deposition when asked about their immigrant status.
Ultimately, each case is unique and no one should fear speaking with an attorney. New York’s highest Court said it well:
The attorney–client privilege shields from disclosure any confidential communications between an attorney and his or her client made for the purpose of obtaining or facilitating legal advice in the course of a professional relationship. The oldest among the common-law evidentiary privileges, the attorney–client privilege ‘fosters the open dialogue between lawyer and client that is deemed essential to effective representation’.” Ambac Assur. Corp. v Countrywide Home Loans, Inc., 27 NY3d 616, 623  (citing CPLR 4503).
If you have questions, please contact us.