Immigration Status Evidence

This post is written by Senior Editor Rob Spicer. Opinions and views expressed herein are those of the writer alone.

In the current political landscape, immigration status is greatly debated.  Due to the polarity of this issue, a party in a civil case may want to introduce evidence of the opposing party’s immigration status.  Actions involving automobile accidents are a common area where a party would want to introduce evidence of immigration status.  In other words, if a party is operating a vehicle while being unlicensed, the opposing party may want to introduce that unlicensed status, and thus, the non-immigrant status as evidence of negligence.  The Kentucky Legislation has enacted the following:

Any driver involved in any accident resulting in any damage whatever to person or to property who is ineligible to procure an operator’s license, or being eligible therefor has failed to procure a license, or whose license has been canceled, suspended or revoked prior to the time of the accident, shall be deemed prima facie negligent in causing or contributing to cause the accident.[1]


The Supreme Court of Kentucky has examined the history of this statute in Rentschler v. Lewis, and discussed the relevance of introducing evidence of a failure to procure a driver’s license.[2]  Ultimately, the Court held that whether the driver was unlicensed or licensed did not prove or disprove that the driver operated the vehicle in a manner that caused the accident.[3]  Additionally, the statute only creates a rebuttable presumption, and that mere failure to procure a license alone does not have any relevance to whether or not the vehicle was improperly handled. By introducing evidence that the driver was not at fault in the accident, the presumption was rebutted, and evidence of being unlicensed was irrelevant and inadmissible.[4]

Admissibility of immigration status has not been directly addressed in Kentucky nor in the Sixth Circuit Court of Appeals.  However, amongst other jurisdictions, there are similar trends on the issue of whether or not to allow immigration status in as evidence.  The American Law Reports points to several cases from various jurisdictions which all share a common trend.[5]  There are two general circumstances that allow immigration status to be brought up: (1) the individual voluntarily testifies about it, or (2) the individual is claiming lost future earnings, and therefore, immigration status is relevant as it relates to the probability of deportation.[6]  Even if the individual is claiming future lost earning capacity, the courts seem to be divided on whether or not immigration status would be allowable.[7]  For instance, the Supreme Court of Indiana in May, 2017, held that if a court finds by a preponderance of the evidence that deportation is likely, then the immigration status is inadmissible.[8]

However, the standard is not as high when future lost wages are not being alleged. In Ayala v. Lee, two illegal immigrants were hit by a vehicle and injured and defendants wanted to introduce their immigration status.[9]  In its discussion this Court found that immigration status is typical prejudicial, and even if not, its relevance typically relates to whether a party is entitled to lost wages, and how they should be calculated.[10]  Additionally, immigration status alone does not reflect on an individual’s character and is not admissible for impeachment purposes.[11]  But, in this case, the individuals opened the door to questions about their status when their answers to interrogatories differed substantively from other evidence they submitted.[12]

Ultimately, immigration status should only be admissible in cases where that status has some relevance.  A lack of licensure alone is not enough to introduce immigration status, as it does not necessarily create an issue of negligence on its face.  However, if an individual who was a nonimmigrant made a claim for lost wages, that immigration status may be raised as wages are directly related to the ability to obtain employment as an immigrant.  Its seems though as a general rule, an opposing party will not be able to bring up immigration status unless that immigrant has either raised a claim that involves their status, or opens the door in their own testimony.

[1] Ky. Rev. Stat. Ann. § 186.640 (West)

[2] Rentschler v. Lewis, 33 S.W.3d 518, 519 (Ky. 2000)

[3] Id.

[4] Id at 521.

[5] Admissibility 79 A.L.R.6th 351 (Originally published in 2012).

[6] Id.

[7] Id.

[8] Escamilla v. Shiel Sexton Company, Inc., 73 N.E.3d 663 (Ind. 2017).

[9] Ayala v. Lee, 81 A.3d 584 (Md. Spec. App. 2013)

[10] Id. at 478-80.

[11] Id. at 480 (citing Figeroa v. U.S. I.N.S., 886 F.2d 76, 79 (4th Cir. 1989)).

[12] Id. at 481.

Author: nkylrev

The Northern Kentucky Law Review, founded in 1973, is an independent journal, edited and published entirely by the students of NKU Chase College of Law.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s