Illegal aliens or undocumented workers have become a constant presence in civil litigation. They may be plaintiffs, defendants, your witnesses, or the opponent's witnesses. In workers compensation matters, they may be claimants, co-workers and sometimes employers. Where an illegal alien is concerned, there may be violations of immigration or other laws that offer opportunities for cross examination or even legal defenses. To develop the evidence to raise such issues, it may not be enough to take discovery from the witness or party; it may be necessary to also take discovery from his or her employer. That requires prior planning and a determination to contest objections. It is almost a certainty that there will be resistance to disclosure of facts about a witness's immigration status. That may result in discovery disputes and rulings from the court or agency that could be the basis of meritorious appellate issues. The assertion of 5th Amendment privileges may also be a basis for proper adverse inferences to be drawn in a civil matter.
Any lawyer who is involved in litigation has to be prepared to deal with immigration-related issues from either side. It is not an issue "owned" by the defense bar or the plaintiff's bar.
As a threshold issue, the advocate has to consider the venue and the likelihood of how such a cross examination will be received. Illegal immigration isn't a new phenomenon and there will be a local body of law to be consulted. See this recent Fairfax, Va. court ruling, for example. Further, an attempt to cross examine on such issues could backfire. There is some moral ambivalence about illegal immigration. On the other hand, as Robert Samuelson's column in the Washington Post points out, the magnitude of the problem of illegal immigration, in terms of sheer numbers, now militates against the impulse of a nation of immigrants to simply overlook the issue.
There is a pervasive criminal element that sells fake documentation to illegal immigrants so that they can obtain work. Evidence of the use of such fake documentation would be useful information to uncover for purposes of cross examination. Every year the Social Security Administration sends out "no match" letters to employers concerning millions of workers who are using invalid social security numbers. Discovery should focus not only on the worker, but on the worker's employer, who might have copies of the false documentation used to obtain the job and a copy of any "no match" letter received from the SSA with regard to this particular employee.
